Why clear contracts and proper processes matter: lessons from a nursery worker's employment tribunal claim

Contracts, policies and procedures regulate the relationship between employee and employer, but what happens when they are not clearly written? The tribunal in M Slyk v Nursery @ Aspire considered what was really meant by an ambiguous clause in a policy and also whether the nursery had correctly handled a flexible working request. 

Facts

Occupational Maternity Pay

Ms Slyk began her employment as a nursery assistant and was later promoted to a room leader. In 2018, the nursery introduced occupational maternity pay (OMP), as outlined in a policy which stated: “OMP is paid for 12 weeks on top of SMP equating to 90% of pay.” 

Around five years later, Ms Slyk went on maternity leave. During this time, she was informed that she had been overpaid and had to repay the excess. Ms Slyk rejected this and said that she should have be paid 90% of her salary on top of her statutory maternity pay. 

The nursery disputed Ms Slyk's interpretation of its policy and held a grievance meeting with her to discuss this. The meeting was chaired by a volunteer trustee who acknowledged that the wording in the booklet might be unclear but said that the intention of it was to pay 90% of salary for 12 weeks. This exceeded the statutory maternity pay entitlement, which provides 90% of average weekly earnings for the first six weeks, followed by 33 weeks at the statutory rate (from April 2025, £187.18 per week) or 90% of average weekly earnings, whichever is lower. 

Ms Slyk disagreed and submitted an employment tribunal claim alleging breach of contract and pregnancy/maternity discrimination. 

Flexible working

When Ms Slyk returned from maternity leave, the nursery manager temporarily re-organised staff so that she could reduce her hours. To accommodate this, another room leader was reallocated to Ms Slyk's room.

Ms Slyk discussed the possibility of permanently reducing her hours. The nursery manager explained that the room leader role was full-time, and similar requests had previously been declined due to the nature of the role. 

Following the conversation, Ms Slyk formally requested to reduce her daily hours from seven to five for a five-month period, after which she intended to place her child in nursery.  

The nursery manager consulted the trustees and outlined several reasons why flexible working was not possible, including:

• the upcoming maternity leave of the person who was second in charge
• the need for a senior staff member to guide and prioritise tasks
• legal requirements for staff to child ratios; and 
• the potential impact on the children 

The nursery manager emailed Ms Slyk, explaining that all room leaders were currently working full-time and were required to open or close the nursery on a weekly rota. The Froggy Team (where Ms Slyk worked) specifically needed a full-time room leader. While efforts had been made to support her return, by temporarily reassigning another room leader, that arrangement was coming to an end - and couldn't be extended. This meant that Ms Slyk needed to resume her full-time role. 

Just over an hour after receiving the email, Ms Slyk resigned. She cited the rejection of her statutory flexible working request, and the outstanding occupational maternity pay issue as the reason. The nursery manager expressed surprise at the resignation and suggested another option was for Ms Slyk to move onto a bank staff contract which would give her greater flexibility. Ms Slyk declined this option. 

She brought further employment tribunal claims alleging a breach of the flexible working request process, detriment for making the request, constructive unfair dismissal, and victimisation. 

Employment Tribunal

The tribunal found that the occupational maternity pay clause was ambiguous. Under contract law, clauses should be interpreted based on the parties' intentions - specifically, what a reasonable person with background knowledge would have understood. In this case, the tribunal concluded that the nursery's consistent responses indicated that the clause was intended to provide 90% pay for the first 12 weeks of maternity leave only. Since Ms Slyk received this amount, there was no breach of contract and no evidence of discrimination. 

At the time Ms Slyk submitted her flexible working request, the law did not require employers to consult with employees before refusing it, although the ACAS code of practice in force at the time suggested that employers should discuss it with the employee. However, the law changed in April 2024, introducing a requirement (amongst other changes) to consult before rejecting a request. Although this change came after Ms Slyk's request, it was in force before the decision was made.

The tribunal found that the nursery manager should have met with Ms Slyk to explore possible options with her. Failing to do so was a shortcoming in the nursery's process and a breach of the flexible working request provisions. Therefore, she was awarded four weeks' pay totalling £2,351.92 in compensation. 

However, the refusal itself was justified as it fell within the statutory reasons permitted by law, and there was also no evidence that Ms Slyk suffered any detriment for making the request. 

While there was a minor breach, the tribunal held that it was not serious enough to undermine trust and confidence, and it rejected her constructive dismissal claim. It also dismissed her victimisation claim: the flexible working request was refused because the nursery required the room leader to be full-time, not because Ms Slyk had submitted a tribunal claim. With no causal link between the claim and the refusal, there was no victimisation. 

Learning points

1. Contracts and policies

When a clause in an employment contract or policy is ambiguous, tribunals and courts in England and Wales will interpret it by applying established principles of contractual construction. One of these is the ‘contra proferentem’ rule, which resolves ambiguity against the party that drafted or seeks to rely on the clause -typically the employer. However, this rule is applied only if the ambiguity persists after other interpretative tools have been exhausted. 

If you are drafting a policy or contract, it's sensible to ask someone else to review it. Although you know what you mean and what you intend to convey, it's worth sense checking this with others to make sure that's how they interpret it. If there's a disparity between what you mean and how someone else reads it, go back to the drawing board and start again. It will save time in the long run!

Adding worked examples can also be helpful - particularly to demonstrate entitlement to enhanced payments and holiday pay.

2. Flexible working requests

All employees have a day one right to ask to work flexibly. It's a right to ask - not a right to get and you are perfectly entitled to reject a request that you can't accommodate it, provided it falls within the eight statutory reasons which are:

• burden of additional costs
• detrimental effect on ability to meet customer demand
• inability to re-organise work among existing staff
• inability to recruit additional staff
• detrimental impact on quality
• detrimental impact on performance
• insufficiency of work when the employee proposes to work
• planned structural changes

Before refusing a request, you must consult with the employee. As this case illustrates, failing to follow the correct procedure can lead to a successful tribunal claim. A claim may also arise if the refusal is based on inaccurate information. It's therefore essential to handle requests properly - and seeking legal advice is always advisable.

Bear in mind that the rules on this are changing. The Employment Rights Bill will give employees a hard edged personal right to challenge a refusal. Employers will have to point to one of the existing statutory grounds and show that it is reasonable to refuse the request on those grounds. We don't yet know whether reasonableness in this context means wholly objective or will be subject to the range of reasonable responses test. My money's on the former. 

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