Adamu Thomas v The Kingsdale Foundation

A teacher formerly paid at the highest point of the abolished post-threshold scale has no automatic contractual right to the maximum of the successor upper pay range. Under the School Teachers’ Pay and Conditions Document, pay within that range is determined by the employer and progression depends on performance. Earlier U3 status does not preserve a corresponding level under the new system.

In the absence of a performance-based decision to increase pay, the contractual minimum is the bottom of the applicable upper pay range. An unlawful-deduction claim concerns sums presently payable under the contract. It cannot recover wages which might have become payable had the employer undertaken an assessment or exercised a discretion differently.

The appellant, a maths teacher, was contractually entitled to be paid in accordance with the School Teachers’ Pay and Conditions Document. Before 2013 he had reached U3, the highest point on the former post-threshold pay scale. The pay structure was then replaced by an upper pay range with minimum and maximum rates, and performance-based progression.

The Employment Tribunal partially upheld his claim under section 13 of the Employment Rights Act 1996. It held that he was entitled to no less than the minimum of the upper range, but rejected his contention that his former U3 status entitled him to its maximum. It awarded £640.17. The teacher appealed the principal rejection. The School accepted that the correct shortfall was £902.67 and lodged a contingent cross-appeal.

1. Appeal allowed in part. The tribunal correctly rejected the claim to the maximum of the upper pay range, but its calculation of the unlawful deduction was wrong. The award was increased to £902.67. The School’s contingent cross-appeal did not arise.

2. The 2013 change from fixed post-threshold points U1, U2 and U3 to an upper pay range was legally significant. Under the former system a teacher could not lose achieved scale points. Under the successor system, however, the relevant body determined the salary within a minimum and maximum range, and increases depended on performance.

3. Payment at U3 before the change did not entitle the appellant to the maximum of the successor range. The former scale points had been abolished. The permanence provisions for a pay increase or safeguarded sum within the new upper range did not preserve pay fixed under the earlier scale. The advisory points in the 2020 document, including the point corresponding to U3, did not create an enforceable entitlement because they were not mandatory.

4. Absent a performance-based decision to increase pay, the School was contractually required to pay no less than the minimum of the upper pay range. Its actual payments fell below that minimum during the statutory claim period, producing an unlawful deduction under section 13 of the Employment Rights Act 1996.

5. A complaint that the School failed to assess performance annually could not found this unlawful-deduction claim. Such a claim concerns sums legally payable in connection with employment, not sums that might have been payable had the employer acted differently. Any such complaint would have been one for breach of contract, which the tribunal could not entertain while the appellant remained employed.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal’s judgment sent to the parties on 6 August 2024. The tribunal’s rejection of the claim to the maximum upper-range rate was upheld, but its award was varied from £640.17 to £902.67.
• Employment Tribunal: Partially upheld a claim for unlawful deductions from wages under section 13 of the Employment Rights Act 1996, while rejecting the substantial remainder of the claim.