Mr R B M Suverkrop v St Andrew’s Tutorial Services Ltd T/a St Andrew’s College: 3303959/2024
EMPLOYMENT TRIBUNALS
Case No 3303959/2024
Between
Mr R B M SuverkropClaimantSt Andrew’s Tutorial Services Ltd T/a St Andrew’s CollegeRespondent
Before
Employment Judge Grahame AndersonIn person for claimantMs. S. Hoare - Solicitor for respondentDate 23 June 2025
JUDGMENT
(1) The Claimant’s claim of breach of contract in relation to a failure to pay notice is not well-founded and is dismissed;(2) The Claimant’s claim in respect of pay in lieu of accrued but untaken holiday pay is not well-founded and is dismissed;(3) The Respondent’s application for costs is dismissed.
REASONS
[1]This is the Claimant’s claim for notice pay, holiday and other payments. As will become clear, all of the claims turn on a disputed construction of the Claimant’s employment contract.[2]At today’s hearing, the Claimant represented himself. The Respondent was represented by Ms. Hoare. Page 1 of 11[3]As the hearing was being conducted over CVP, I explained certain important ground rules and indicated that the Tribunal could make adjustments to the procedure to ensure everyone was able to participate. None was requested. I underlined the importance of asking for and taking breaks if necessary.[4]There were witness statements from the Claimant himself and from Lauren Huntley, the Respondent’s HR Manager. Both witnesses were cross-examined on oath/affirmation.[5]In addition to the witness statements, I had a 109-page bundle of documents. If I refer to a page number in this judgment, it is to the pages of that bundle.[6]The case came on before EJ Laidler in Bury St. Edmunds on 12 December 2024. She identified the issues. In particular, she identified that: 6.1. the Claimant had withdrawn a claim in relation to accommodation allowance (that was the Claimant’s claim for “other payments”); 6.2. the Respondent had paid the Claimant holiday pay up to the end of August 2024, something it says it was not contractually obliged to do. It then made deductions in respect of accommodation (in the sum of £1,400).[7]That being so, I clarified with the Claimant whether the only outstanding issue was notice pay. The Claimant said that he did not accept that the holiday pay he had received had been calculated correctly but it was clear that he could only have been entitled to any payment if he was right on the construction of the contract (i.e., that he continued to accrue holiday during the lengthier notice period he contended for). Accordingly, if (but only if) the Claimant was correct in his analysis of the contract, the calculation of holiday pay was something I would need to address in due course.[8]At the end of the hearing, the Claimant asked for written reasons. I explained that the written reasons(i) may be more detailed than the oral judgment I had given Page 2 of 11 and(ii) would be made available on the online Employment Tribunal judgments database.[9]The Respondent made a costs application which I dismissed for reasons given orally at the end of the hearing.
Facts
[10]The majority of the facts in this case were agreed.[11]The Respondent is a school. The Claimant was its Deputy Head – Head of Boarding and Pastoral care pursuant to a Contract of Employment (“the Contract”) dated 21 August 2023. Like most educational establishments, the school’s year is divided into three terms. The contract[12]The Contract has the following relevant terms: 12.1. Clause 3.2 stipulated that “the employment may be terminated by either party on a terms [sic] notice given in writing at any time during or at the end of this probationary period”. 12.2. Clause9.1 stipulated that “[d]uring any probationary period your appointment may be terminated in accordance with clause 3.2[.] If the employment continues after the end of the probationary period and without prejudice to the right to summarily dismiss, your appointment may be terminated by either party giving to the other not less than one full term’s notice in writing”. 12.3. Clause9.2 went on to stipulate that “[n]otice under this clause, must be given no later than the last teaching day of the term preceding the term when it is intended to take effect. Notice under this clause will always be Page 3 of 11 deemed to expire on the following dates: Spring term 30th April; Summer term 31st August; Autumn term 31st December”. The Claimant’s dismissal[13]The Claimant was given verbal notice of dismissal on 8 January 2024.[14]He was given a written notice confirming his dismissal on 26 January 2024. The Respondent accepts that the verbal notice was not effective. He was paid up to the date on which he was given written notice and then paid in lieu of the term’s notice the Respondent says he was due (i.e., 12 weeks). The Claimant was, at that stage, in the probationary period of 6 months which would have ended on 20 February 2024. The parties’ positions[15]The Respondent says that the effect of clause 3.2 is that, in his probationary period, the Claimant was entitled to “a term’s notice”. That, it says, is akin to 12 weeks because that is how long a term lasts (i.e., a 36-week teaching year divided by three). It says that, in effect, everyone in the world of education understands that “a term’s notice” would mean 12 weeks or a third of an academic year.[16]The Claimant maintains that clause 3.2 is “silent on” notice period. He says that, therefore, the applicable clause is clause 9.2 which requires written notice which cannot take effect until the end of the term after which it is given. Accordingly, since notice in this case was given in the spring term, he ought to have been paid until the end of the summer term. Because he takes the view that clause 3.2 is “silent” on notice, the Claimant has not advanced, in his claim or his witness statement, a positive case on the interpretation of the phrase “a terms notice” in clause 3.2.
Discussion and conclusions
[17]The central question in this case is what was the Claimant’s notice period on 26 January 2024. That is a question of contractual construction. Page 4 of 11[18]Clause 3.2 expressly deals with a situation in which the Claimant is in his probationary period which he undoubtedly was. It says he is entitled to be given “a terms” notice (read: a “term’s”). That is made obvious by cl 9.1 which, as I described it in the hearing, creates a “fork in the road”: if one is in one’s probationary period, you follow one path back to clause 3.2, if not you continue into the balance of clause 9.1 and cl . 9.2.[19]The Claimant was in his probationary period. It is clear, therefore, that the applicable term is clause 3.2 and expressly not clause 9.2. The latter clause can only apply once an employee has got past the probationary period. I reject, therefore, the central part of the Claimant’s case that somehow clause 9.2 can have applied to his case. If there were any doubt about it, clause 9.2 makes clear that it is applicable to notice given “under this clause” (i.e., clause 9).[20]Clause 3.2 requires a “term’s notice”. The question, then, is what “a term’s notice” means here. To that extent, I accept that, at least on its face, there is some ambiguity in relation to the clause. In resolving that ambiguity, I have had well in mind the principles classically set out in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 (set out at pp. 912-3): Almost all the old intellectual baggage of “legal” interpretation has been discarded. The principles may be summarised as follows.(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.(2) The background was famously referred to by Lord Wilberforce as the “matrix of fact,” but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. Page 5 of 11(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd. [1997] A.C. 749.(5) The “rule” that words should be given their “natural and ordinary meaning” reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera S.A. v. Salen Rederierna A.B. [1985] A.C. 191 , 201: “if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.”[21]In the hearing, the Claimant said that it is impossible to define what “a term’s notice” means because the contract is silent on what it means. He points to the fact that Page 6 of 11 the only definition of a term is contained in clause 9.2. Pausing there: that is not quite right. Clause 9.2 in fact sets out the dates on which termination, given in the previous term, will be deemed by clause 9.2 to expire. No doubt they roughly equate to dates towards the end or at the end of the respective academic terms. But the clause does not define, per se, the academic terms for all purposes in the contract.[22]It seems to me that there are two stages to the analysis. 22.1. The Claimant’s case, broadly speaking and allowing for the fact that he insists that clause 3.2 does not apply, must be that the expression “term” refers to the three discrete blocks of time called “Spring term”, “Summer term” and “Autumn term”. The Respondent’s case is that a “term” is also a measure of a period of time: just as “June” and “July” are months, so a month can be a period of c. 30/31 days. So the first question is whether the reference in clause 3.2 to “a term’s notice” is a reference to a period of time or to a discrete fixed period. 22.2. If it is a period of time, the question then becomes what is the relevant period of time. Is it, as the Respondent says, a 12-week period. Or is it something else? Or is it simply unknowable, as the Claimant says it is?[23]In my judgment, on balance, the reference in clause 3.2 to a “term” is to a period of time: 23.1. First, it is obvious that, reading the Contract as a whole, the parties intended for there to be a distinction between the notice to which an employee was entitled in their probationary period and that to which they were entitled post-probation. That is made clear by the “fork in the road” in clause 9.1. The Claimant’s case is that, in essence, a probationer is entitled to exactly the same notice as someone post-probation. That, in my judgment is unsustainable: clause9.1 and clause 3.2 would be rendered entirely otiose if the intention was that, from day one, the Claimant was entitled to notice ending at the end of the following term. Page 7 of 11 That is underlined by the fact that clause 9 expressly distinguishes notice given under that clause from notice given under clause 3 (thus “under this clause” as opposed, by implication, to under clause 3). 23.2. Second, both clauses 3.2 and 9.1 take as their starting point “a term’s notice” (even if, in clause 9.1 a slightly different formulation – “a full term’s notice” – is used. I asked myself whether, as Ms. Hoare suggested, the use of “full term’s notice” was an instructive point of contrast. I can see that it might be thought to be akin to, for example, the “clear day” formulation in the Civil Procedure Rules, but I discounted that: I do not think that, on any view, if “a term’s notice” is to mean a period of time, it means any less than a “full” term; similarly, if a contract stipulated for a “full month’s notice” to be given, I do not think that that would mean anything more or less than the 30/31 day time period ordinarily indicated by that phrase). However, clause9.2 does not stop there. It does not simply say “a term’s notice”: in providing for longer notice post-probation, clause 9.2 has to go further in setting out that notice given in one term will expire at the end of the next term. In the context of the contract, it was not sufficient to say “a term’s notice” to achieve that result. What that means is that, in the context of this contract,(1) “a term’s notice” cannot, on its own, mean “the rest of this term plus all of next term” because a more involved formula was needed to have that effect and,(2) ordinarily notice given at a point in one term would expire at the corresponding point in the following term: it requires clause 9.2 to then extend it to the end of the term. 23.3. Third, to my mind, the syntax of clause 9.1and clause 3.2 (i.e., the expression “term’s notice”, with the use of the possessive) implies use of “term” as a measure of time rather than a fixed period. That is to say notice equivalent to the period of a term (but not a term per se).[24]That being so, I move on to the next stage of the analysis: how long is a term’s notice? Page 8 of 11 24.1. The Claimant says it is so ambiguous as to be unenforceable. I understood the upshot of his submission to be that, because it so unclear, clause 3.2 simply falls away and that somehow the mechanism in clause 9.2 applies. That would be to re-write the contract. 24.2. I accept the Claimant’s position that, at least to the uninformed observer, it is not immediately clear on the face of it precisely what a term means. I put to the Respondent that even the precise dates of their own terms vary in length. However, as Investors Compensation Scheme makes clear, the relevant standpoint is not that of the “uninformed observer” but rather the reasonable person with the relevant background information. 24.3. I accept the Respondent’s evidence that in the world of education the year is organised according to a 36-week academic year, divided into three 12- week terms. The Claimant’s evidence on this was somewhat ambivalent. Initially he appeared to say that he simply did not know what the term dates were because, in a management / pastoral role, term dates were of less significance to him. In Ms. Hoare’s cross-examination, he appeared to be at pains not to agree with any propositions put to him, including initially refusing to accept that there were three terms in a year. He clarified later that what he meant was simply that term dates were of less significance to him and so he was less aware of them. However, I considered his evidence on this evasive: I did not think it credible that someone who had worked in education for his entire career could be so ambivalent about the meaning of an academic term. 24.4. In any case, at one juncture the Claimant himself referred to a 12-week term as being, to use his phrase, “industry standard”. He did not put to Ms. Huntley that she was wrong about 12 weeks being in any way a standard measure of a term in the world of education. The Claimant accepted that an academic year would be 36 weeks but said that because he was not in an active teaching role that did not necessarily apply to him. That is fine as far as it goes but, in my judgment, the school, indeed the educational world, operates according to this concept of academic terms – there are Page 9 of 11 not different terms for different people – and that is plainly what was being referred to in the contract.[25]Drawing the threads together, I am satisfied that a reasonable person with the relevant background context would have understood a year to mean 36 weeks and thus a term for these purposes to be 12 weeks.[26]The Claimant has said in his claim and in his witness statement that clause 9.2 is ambiguous and most therefore be construed contra proferentem. Clause 9.2 is not relevant to the Claimant’s claim because he was in his probationary period. Clause 9.2 governs the period post-probation. In any event, I can see no ambiguity. In the hearing, he put to Ms. Huntley that clause 3.2 was ambiguous. She did not accept that. I did not allow him to put to Ms. Huntley that the contra proferentem principle should apply because that was a legal question. To be clear, in circumstances where, in my judgment, the Contract falls to be construed as set out above, the contra proferentem principle does not apply.[27]Finally, a point which neither party had appreciated but which I put to them in submissions was that upshot of the Claimant’s submission that clause 3.2 was so ambiguous as to be unenforceable. In my judgment, the effect would not be to simply apply clause 9.2 to a situation it expressly does not apply to. If the contract were truly “silent” about the notice to which the Claimant was entitled in his probationary period, then he would have to fall back on the statutory minimum notice which, in his case, was only one week. On any view he received significantly more than that.
Conclusion
[28]Accordingly, it follows that, in my judgment, the Claimant’s notice period was a 12- week notice period beginning on 24 January 2024. He was lawfully paid in lieu of that notice and was not entitled to any further notice pay. It also follows that no further holiday pay accrued during his notice pay and so no further payments can be due. Page 10 of 11[29]It follows that his claim for notice pay and pay in lieu of accrued but untaken holiday must fail and are dismissed. Approved by: