J Maliphant v Carmarthenshire County Council and Governing Body of Ysgol Dyffryn Taf: 6020648/2024
EMPLOYMENT TRIBUNALS
Case No 6020648/2024
Between
J MaliphantClaimantCarmarthenshire County Council and Governing Body of Ysgol Dyffryn TafRespondent
Before
Employment Judge S PoveyMS O’HALLORAN (instructed by COUNSEL) for claimantMR EVANS (instructed by COUNSEL) for respondentDate 8 September 2025
JUDGMENT
[1]The complaint of unauthorised deduction from wages and/or breach of contract is not made out and is dismissed[2]The complaint of less favourable treatment under The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 is not made out and is dismissed. Approved by: Order posted to the parties on JUDGMENT having been sent to the parties on 28 September 2025 and written reasons having been requested in accordance with Rule 60(4) of The Employment Tribunal Procedure Rules 2024, the following reasons are provided:
REASONS
[1]This is a claim by James Maliphant (‘the Claimant’) arising out of his employment as a substitute teacher at Ysgol Dyffryn Taf (‘the Second Respondent’). He brings complaints of unauthorised deductions from wages and/or breach of contract and breach of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (‘the Fixed-term Regulations’) against both the Second Respondent and the local education authority, Carmarthenshire County Council (‘the First Respondent’).[2]For the hearing of the claim on 8 September 2025, I was provided with an indexed, paginated bundle of documents, which included the parties’ respective witness statements (‘the Bundle’). I also received oral submissions from Ms O’Halloran for the Claimant and Mr Evans for the - 1 - Respondents. I was grateful to both of them for the clarity and cogency of those submissions.[3]The scope of the complaints has narrowed, such that the parties agreed that the remaining substantive issue for determination was limited to the following: 3.1. Should the Claimant have been paid for the period from 20 July 2024 to 31 August 2024?[4]As the issues had narrowed considerably, I only heard oral evidence from Kirsty Nixon (the First Respondent’s Human Resources Business Partner). The parties had no questions for the Claimant or for the Respondents’ other witnesses on the issue of liability. That was because the relevant facts in the case were not materially in issue. However, I express my gratitude to all the witnesses, including the Claimant, who provided statements and attended the hearing, whether I heard from them or not.
Relevant law
[5]Section 13 of the Employment Rights Act 1996 (‘ERA 1996’) affords a worker the right not to suffer unauthorised deductions from wages. This involves a consideration of what sums the worker is entitled to under his contract of employment and what sums he has been paid.[6]For the purpose of section 13 of the ERA 1996, the definition of “wages” includes “any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise” (per section 27(1)(a) of the ERA 1996).[7]By virtue of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 SI1623, proceedings may be brought before the Tribunal in respect of a claim of an employee for the recovery of damages or any sum for breach of a contract of employment where the claim arises or is outstanding on the termination of the employee’s employment.[8]The Tribunal has the jurisdiction to resolve any issue necessary to determine whether a sum claimed under section 13 of the ERA 1996 was properly payable. That includes an issue as to the meaning of the contract of employment (per Agarwal v Cardiff University [2018] EWCA Civ 2084).[9]In Raymond Saul & LLP v Rashbrook [2025] EAT 129, the Employment Appeal Tribunal summarised the approach to construing clauses in employment contracts as follows (at [22]): A clause in a contract should generally be construed neutrally on its natural and ordinary meaning using the proper context available to the parties and usual commercial business common sense (Wood v Capita [2017] 2WLR - 2 - 1095). The ultimate aim of interpreting a provision in a contract is to determine what the parties meant by the language used which involves ascertaining what a reasonable person would have understood the parties to have meant. A reasonable person is one who has all the background knowledge which would have reasonably been available to the parties at the time the contract was made.[10]Regulation 3 of the Fixed-term Regulations provide as follows (so far as relevant): 3.—(1) A fixed-term employee has the right not to be treated by his employer less favourably than the employer treats a comparable permanent employee—(a) as regards the terms of his contract; or(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. (2) Subject to paragraphs (3) and (4), the right conferred by paragraph (1) includes in particular the right of the fixed-term employee in question not to be treated less favourably than the employer treats a comparable permanent employee in relation to— (a) any period of service qualification relating to any particular condition of service, (b) the opportunity to receive training, or(c) the opportunity to secure any permanent position in the establishment. (3) The right conferred by paragraph (1) applies only if— (a) the treatment is on the ground that the employee is a fixed-term employee, and (b) the treatment is not justified on objective grounds. (4) Paragraph (3)(b) is subject to regulation 4. …[11]Regulation 4 of the Fixed-term Regulations states as follows: 4.—(1) Where a fixed-term employee is treated by his employer less favourably than the employer treats a comparable permanent employee as regards any term of his contract, the treatment in question shall be regarded for the purposes of regulation 3(3)(b) as justified on objective grounds if the terms of the fixed-term employee’s contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee’s contract of employment. (2) Paragraph (1) is without prejudice to the generality of regulation 3(3)(b). Relevant facts - 3 -
Relevant facts
[12]As indicated, the material facts were not in dispute.[13]The Claimant was initially employed as a temporary teacher of science with the Second Respondent with effect from 30 June 2023, to cover a permanent teacher’s maternity leave. His employment was initially for a fixed-term until 29 March 2024 (at [273] – [275] of the Bundle). His appointment was subsequently extended to 19 July 2024, as cover for a different permanent teacher who was on ill-health absence (at [292]).[14]The teacher on ill-health absence returned to work on 19 July 2024. The Claimant’s employment terminated on 19 July 2024, as the fixed-term was not extended (at [297] – [298] of the Bundle). 15. 19 July 2024 was also the last working day of the summer term. Permanent teachers were paid over the summer holiday (from 20 July 2024 to 31 August 2024). The Claimant was not.[16]The Claimant’s employment was governed by the Conditions of Service For School Teachers In England And Wales (known as the Burgundy Book) and the School Teachers’ Pay and Conditions (Wales) Document 2024 (issued by the Welsh Government). The provisions of the Burgundy Book are incorporated into all public sector teachers’ contracts of employment.[17]The following extracts from the Burgundy Book were relevant to the issues in this case (at [72] – [74] of the Bundle): Section 2: Definitions1.1 “Teachers” means all teachers (including head teachers) who work in schools or in centrally managed LEA services and who are remunerated either on a full-time basis or a part-time basis, other than:(a) those employed on a day to day or other short notice basis (i.e. teachers paid at a daily or hourly rate) under the terms of the School Teachers’ Pay and Conditions Document;(b) those employed on a temporary basis either for a period of one term or less or as substitutes for permanently appointed teachers absent for reasons such as secondment, prolonged illness or maternity;1.2 Those teachers falling within category (a) of paragraph 1.1 above shall be covered by paragraphs 5 and 6 of Section 3, paragraphs 1,2 and 4 of Section 6, Section 7 and paragraphs 1 and 2 of Section 8.1.3 Those teachers falling within category (b) of paragraph 1.1 above shall be covered by all sections of the document, except paragraph 4 of section 3 - unless there is no other stated notice provision within their contract. … Section 3: Appointment: Resignation: Retirement - 4 - 1.1 Teachers shall be paid salary in accordance with the terms of the School Teachers’ Pay and Conditions Document by monthly instalments and should receive not less than one-third of a year’s salary for each full term’s service. For the purpose of these arrangements the three terms in each year shall be constituted as follows: the Summer term from May 1 to August 31; the Autumn term from September 1 to December 31; the Spring term from January 1 to April 30. … Section 4. Period of notice and termination of contract 4.1 All teachers shall be under a minimum of two months’ notice, and in the Summer term three months’, terminating at the end of a school term as defined in paragraph 1 above. …[18]It was not in dispute that the Claimant’s employment fell within Paragraph 1.1(b) of Section 2, above, or that, as a result, the notice provisions under Paragraph 4.1 of Section 4 did not apply. Analysis & conclusions Burgundy Book construction & application[19]Both parties advanced different interpretations of Paragraph 1.1 of Section 3 of the Burgundy Book (which did apply to the Claimant’s employment). The Claimant said that to all intents and purposes, he worked the summer term, in that he worked as a teacher for every day during the summer term that the school was open and that teaching was being provided. No teacher was able, required or permitted to teach after 19 July 2024, because the school was closed for the summer holidays. To that end, it was submitted, the Claimant worked the full term, acquired a full term’s service and, per Paragraph 1.1, should have been paid no less than one third of a year’s salary, that is he should have been paid until 31 August 2024.[20]In contrast, the Respondent said that the Claimant did not provide a full term’s service for the summer term of 2024, because the term was defined as running from 1 May to 31 August. The Claimant’s contract expired on 19 July 2024 and was not extended. The reason for that was the return of the permanent teacher he was covering for. His services were no longer required and his employment terminated by expiry of his fixed-term contract. As such, he did not complete a full term’s service and was only entitled to be paid up to 19 July 2024.[21]I preferred the Respondent’s interpretation of Paragraph 1.1 of Section 3 for the following reasons: - 5 - 21.1. The phrase used in Paragraph 1.1 is “full term’s service”, and the definition or duration of a term is specifically codified in the same paragraph. It refers to a “full term’s service”, not just teaching, and then, importantly, explicitly defines what a full term is by reference to specific dates. For the summer term, those dates are 1 May to 31 August. If the paragraph was intended to mean what the Claimant contended, that working every day that the school was open for pupils meant a full term’s service, it could have said so in simple terms. It could have included different or alternative definitions of a full term, say for example “1 May until the start of the summer holidays for non-permanent staff” but it does not. 21.2. It follows that in my judgment, the paragraph’s definition of a full term’s service can only mean service from 1 May to 31 August, which the Claimant did not have, as his employment ended, quite legitimately and lawfully, on 19 July 2024. 21.3. That conclusion was reinforced by Mr Evan’s submission as to the effects if the Claimant’s interpretation of Paragraph 1.1 held sway. It would result in the Claimant being paid until 31 August in circumstances where, as here, the permanent teacher had returned to work and was also entitled to be paid their full salary from 19 July 2024. In effect, two teachers would be paid for the same position. 21.4. The Burgandy Book is clearly alive to that possibility arising from the employment of substitute teachers to cover maternity and sick leave. As such, and as detailed, it explicitly excludes teachers in that category (as defined by Paragraph 1.1(b) of Section 2) from any entitlement to notice of termination (and from the attendant pay requirements). I agreed with Mr Evans that to permit the Claimant’s interpretation of Paragraph 1.1 of Section 3 to prevail would amount to the requirement for notice and notice pay by the back door. 21.5. There is also a quid pro quo in operation. Whilst substitute teachers like the Claimant are not entitled to notice periods of a minimum of two months and in the summer term, three months, terminating at the end of the school term, they are similarly not required to give minimum notice of two months and in the summer term three months terminating at the end of the school term (since the notice requirements in Paragraph 4 of Section 3 do not apply to them). 21.6. In addition, if the Claimant’s constriction of Paragraph 1.1 of Section 3 were correct, that would result in an odd situation. If he were offered and accepted a permanent teaching post with another school which did not break up for the summer holiday until later than 19 July 2024, he could start straight away without giving notice (as his fixed-term contract with the Respondents ended on 19 July 2024) and would be paid by both the Respondents and his new employer for the period up to 31 August 2024. In contrast, a - 6 - permanent teacher in the same position would be unable to start with the new employer until 1 September 2024 at the earliest, provided they had given at least three months prior notice to the Respondents (such that they would only be paid by the Respondents for the period until 31 August 2024).[22]I reached those conclusions on the clear and ordinary meaning of the terms and words used in the Burgundy Book, and when read in context. That was also consistent, in my judgment, with the purpose behind the definitions in Section 2, the provisions in Section 3, the clear and obvious requirement for flexibility in the recruitment, retention and removal of substitute teachers, and the reasonable and proper budgetary considerations which underpin the terms and conditions of such an important part of the teaching cohort.[23]For all those reasons, I found that the Claimant did not attain a full term’s service in respect of the 2024 summer term. That was sufficient to determine the Burgundy Book element of the claim. Under the terms of the Burgundy Book, as construed, the Claimant was not entitled to be paid until the end of the summer term. He was not entitled to be paid for the period from 20 July 2024 until 31 August 2024. The Fixed-term Regulations[24]It was not in dispute that the Fixed-term Regulations applied to the Claimant’s employment. So far as relevant, Regulation 3 affords fixedterm employees the right not to be treated by their employer less favourably than their employer treats a comparable permanent employee as regards the terms of their contract (which includes pay). That right is qualified in two ways (per Regulation 3(3) and Regulation 4): 24.1. The unfavourably treatment must be on the ground that the employee is a fixed-term employee; and 24.2. The treatment is not justified on objective grounds, defined by Regulation 4 as “if the terms of the fixed-term employee’s contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee’s contract of employment.”[25]The less favourable treatment relied upon by the Claimant was the nonpayment of wages from 20 July 2024 to 31 August 2024. It was not in dispute that permanent teachers who worked from 1 May 2024 to 19 July 2024 would continue to be paid up to 31 August 2024. It was not in dispute that the Claimant undertook all the same duties as a permanent teacher. As such, to the extent required, I concluded that the Claimant was treated less favourably than a permanent employee in respect of the right to be paid from 20 July 2024 until 31 August 2024.[26]Was the less favourable treatment on the ground that the Claimant was a fixed-term employee? This returned me to my analysis of the - 7 - provisions of Paragraph 1.1 of Section 3 of the Burgundy Book. It was that provision, coupled with the termination of the Claimant’s employment by expiry of his fixed-term contract and the exclusion from any notice requirements (on both sides) that resulted in the Claimant not acquiring a full term’s service for the 2024 summer term. That is why he was not paid from 20 July 2024 up to 31 August 2024.[27]The exclusion of the requirements for notice (which, if not applied to the Claimant, would have resulted in him attaining a full term’s service for summer 2024, as he would have either had to give or be entitled to receive notice up to the end of the summer term on 31 August 2024) did not apply to all fixed-term or temporary employees. In other words, not all fixed-term or temporary employees were excluded from the notice provisions in the Burgundy Book. As per Paragraph 1 of Section 2, only those employed for a period of one term or less or as substitutes for permanently appointed teachers who were absent (and who were not employed on a short-notice basis) were excluded from the notice provisions.[28]It follows that a teacher on a two-term fixed-term contract, which was unrelated to the absence of a permanent teacher, is entitled to notice. If the Claimant had been employed for the spring and summer terms only but not as a substitute, he would have been entitled to notice of the end of his contract, in line with Paragraph 4 of Section 3.[29]Similarly, as noted above, so-called short-notice teachers are not excluded from the notice provisions of Paragraph 4 of Section 3.[30]The obvious reason for the difference in treatment is the existence of a permanent post holder, who is temporarily absent (whether by reason of secondment, maternity or sickness), in circumstances where the full financial costs of the permanent teacher is not being born by the Respondents (because it is being paid by the organisation to which the teacher is seconded, or contributed to by statutory maternity pay or statutory sick pay). Upon the return to post of the permanent teacher, those in the Claimant’s position are no longer required and, more importantly, the financial burden of the post continues, albeit is now directed toward the permanent postholder.[31]That, in my judgment and on an ordinary reading of the Burgundy Book, is the real reason for the less favourable treatment and it is a factor unconnected with the fixed-term nature of the Claimant’s employment. Rather, it is a factor informed by the existence of a permanent post holder who is both entitled and envisaged to return to their permanent post.[32]For those reasons, I found that the less favourable treatment complained of was not on the ground that the Claimant was a fixed-term employee.[33]In the alternative, and as I heard submissions on it, I went on to consider for the sake of completeness whether such treatment was objectively - 8 - justified (on the assumption that it was on the ground that the Claimant was a fixed-term employee).[34]To the extent required, I concluded that any such less favourable treatment was objectively justified by the Respondents, for the following reasons: 34.1. The exclusion of the notice provisions worked both ways. The Claimant was not required to give two months notice or three months notice during the summer term, terminating at the end of a school term. His permanent colleagues were and, as previously explored, that was an exclusion which was not without its potential benefits for the Claimant. 34.2. The nature of employment was clear from the outset, as was the date that the fixed-term contract would be terminating. The Claimant had been under no obligation to agree to either the initial fixed-term or the extension, but in doing so, he was (or ought reasonably to have been) fully aware of the circumstances of that employment. 34.3. The Burgundy Book, for reasons explained, did not entitle the Claimant to be paid until 31 August 2024, where his employment ended lawfully on 19 July 2024. The Burgundy Book is incorporated into the contracts of employment of all teachers in publicly funded schools in England and Wales. It is a national agreement between employers and teachers’ unions, following discussion and negotiation. In those circumstances, it cannot be said that its terms are not objectively justified. 34.4. In any event, and more specifically, I repeat my analysis of Paragraph 1.1 of Section 3 of the Burgundy Book, and in particular the potential consequences if the Claimant’s interpretations were adopted. There is an objectively justified reason why teachers working under fixed-term contracts, in substitution of permanent teachers who are away from their post and will be returning, are not entitled to notice periods and the consequential impact of that on their entitlement to be paid until the end of term, notwithstanding that their employment has ended. It would result in two teachers holding the same post at the same time, with the same rights to notice and pay (not to mention other employment rights as against the same employer). 34.5. There is also the need for flexibility. It is not difficult to envisage that were the Claimant’s interpretation of Paragraph 1.1 of Section 3 correct, schools would simply stop recruiting substitute teachers for fear of the potential impact on budgets if they had to continue paying substitute teachers, even though the permanent teacher had returned and the substitute’s employment had lawfully ended. - 9 - 34.6. That objective justification is all the more so in circumstances where those financial burdens fall on the public purse (since the Burgundy Book only applies to contracts of employment in local authority and voluntary-aided schools, not privately funded or independent schools).[35]For those reason, if the less favourable treatment of not paying the Claimant from 20 July 2024 until 31 August 2024 was on the ground that he was a fixed- term employee, such treatment was objectively justified. When taken as a whole, the terms of the Claimant’s contract were at least as favourable as the terms of the comparable permanent teacher’s contract of employment, not least regarding the application or otherwise of the notice provisions.
Conclusion
[36]It follows that the complaint of unauthorised deductions from wages and/or breach of contract and the complaint of less favourable treatment under the Fixed-term Regulations are not made out and are dismissed. Approved by: Order posted to the parties on