Mrs Stephanie Franklin v The Governing Body of Newtons Primary School London and 1 other — 2021

The tribunal considered Mrs Stephanie Franklin's claim that, after her promotion to Higher Level Teaching Assistant in January 2020, she should either have continued to receive six hours per week MDS pay in addition to her HLTA salary or have been paid for an additional hour each day. The respondents' case was that, on taking the HLTA role, her previous Teaching Assistant and MDS roles ended and that she had been paid everything due under the new arrangement.

Employment Judge Barrowclough found there had been uncertainty in January 2020 about whether the MDS role would continue, noting the lack of clear written confirmation, the fact that the claimant continued MDS duties briefly, and the mistaken February 2020 payment. However, the tribunal found that by early April 2020 the respondents had made their position clear: the HLTA role was a 35 paid hour week with a one-hour unpaid lunch break each day, and the claimant could not be paid twice for the same period of work. The judge found that the advertisement for the HLTA role made that 35-hour structure clear.

The tribunal held that the claimant had been paid in full for MDS work done up to 20 January 2020, when she became an HLTA and ceased to act as an MDS. It also found that the respondents later offered her the opportunity to combine six hours of MDS work with 29 hours as an HLTA, preserving 35 paid hours per week, but she refused that proposal. By continuing to work thereafter, the tribunal found that she accepted the contractual arrangement of 35 paid HLTA hours per week with an unpaid daily lunch break. On that basis, there were no unlawful deductions from wages and the claim was dismissed.

The respondents also applied for a costs order under rule 76 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. The tribunal refused that application, taking into account the earlier confusion about the claimant's position, the limited prejudice suffered by the respondents, the refusal of a deposit order at the preliminary hearing, and the fact that any costs order would primarily affect the claimant, who remained employed and had conducted herself properly throughout.