How much of an annual salary can a college withhold for a day on strike? The college counted the weekdays in the year. The teachers counted all 365 days. Their dispute turned on what their annual salary bought, including work the college could not timetable.
The disputed deduction
The appellants were teachers at the respondent’s sixth-form college. Their contracts incorporated the Red Book, the collective conditions for teaching staff in sixth-form colleges. Unlike the Burgundy Book used in secondary schools, the Red Book did not state how much pay could be withheld for a strike.
On 30 November 2011 they took part in a full day of lawful strike action. On or about 31 January 2012 the college deducted 1/260 of their annual pay. It reached 260 by taking 365 days and leaving out weekends, so that only weekdays counted. Supported by the NASUWT, the teachers said that section 2 of the Apportionment Act 1870 required a deduction of 1/365. They sued in the Birmingham County Court for breach of contract, claiming the amount deducted above 1/365.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The decisions below
Before the claim was tried, Jay J decided the same point against another sixth-form teacher in Amey v Peter Symonds College. He accepted that “day to day” in section 2 meant calendar days, but held that section 7 took the contract outside the Act because pay was necessarily tied to directed time. The county court was bound by that decision. The parties agreed a final judgment for the college, while preserving the teachers’ right to argue on appeal that Amey was wrong.
The Court of Appeal dismissed the appeal. Elias LJ, with whom Tomlinson and Sales LJJ agreed, held that section 2 did not require pay to accrue by equal daily amounts. The pay for a strike day therefore had to be found in the contract, and the court adopted the college’s figure of 1/260. Permission to appeal was later granted.
What the annual salary covered
The contracts were annual, running for 12 months from 1 September. A teacher might be required to work on 195 days, of which 190 could be teaching days. Within those days the principal could allocate up to 1,265 hours of directed time: time the college could timetable. Salary was paid monthly, and full salary continued during holiday periods. An extra day of directed time could attract a separate payment of 1/195.
Directed time was not the whole job. The contract and Red Book also required undirected work, including marking, reports, preparation and other professional duties. The college did not fix when or for how long that work was done. On the agreed facts, the teachers regularly did it in evenings, at weekends and during holidays because the directed hours were not enough. The more directed teaching there was, the more undirected work was likely to follow.
Lord Clarke, with whom Lady Hale, Lord Wilson, Lord Hughes and Lord Gill agreed, treated that wider professional role as part of what the annual salary paid for. There was no suggestion that some duties were paid and others unpaid.
Why the Act applied
Section 2 says that salaries shall, like interest on money lent, be considered as accruing from day to day and be apportionable in respect of time. Section 5 confirms that this covers salaries. Lord Clarke read “considered” as making section 2 a deeming provision: it treats salary as building up day by day even if the contract pays it monthly.
The college raised a new argument that the Act did not apply at all. It said the Act deals with entire, indivisible periodic payments, whereas these contracts impliedly paid the teachers only for directed-time work and so were already divisible. Lord Clarke rejected that argument. The Act was intended to cure the unfairness of the old rule that nothing was earned until a whole pay period had been completed, and earlier authority supported applying it to employment contracts. These contracts did not, expressly or by necessary implication, limit pay to divisible daily obligations of directed work.
He also rejected 1/260. That fraction assumes weekday working only. It did not fit work which, on the agreed facts, was also done at weekends and in holidays. The only other figure put forward was 1/365. Because pay continued through holidays and the work was spread across the year, equal accrual on each calendar day was broadly fair. A deeming rule can produce surprising results, but it gives one simple rule. Lord Clarke preferred earlier decisions which had read “from day to day” as calendar days rather than working days.
No express exclusion
Section 7 says that the Act does not apply where it is expressly stipulated that no apportionment shall take place. Lord Clarke agreed that Parliament intended parties to be able to contract out, but held that section 7 requires a clear express stipulation to that effect. If the contract is ambiguous, the Act still applies.
These contracts contained no such stipulation, express or implied. Payments for extra directed days, or the way part-time teachers were paid by reference to directed hours, did not show that the whole annual salary was tied only to measurable directed time. Directed work mattered, but much undirected work had value of its own and was not confined to weekdays.
The result followed from these being annual contracts paid monthly. Lord Clarke said that the position would be very different if the contracts were not annual, because the effect of section 2 depends on the terms of the particular contract.
Verdict: The Supreme Court unanimously allowed the teachers’ appeal. Under these annual contracts the college could deduct 1/365 of annual salary for the strike day. The Court invited the parties to agree the order.
Source: Hartley and others v King Edward VI College [2017] UKSC 39
