Striking teachers

May 24th, 2017 by James Goudie KC

Teachers at a sixth form college participate in a full day of lawful strike action. The collective agreement (the Red Book) incorporated into their individual contracts of employment provides that in such a situation their employer can withhold their pay.  But how much can the deductions be?  That was the issue in Hartley v King Edward VI College  (2017) UKSC 39.  The employer had made the deductions at a rate of 1/260 of their annual pay. That was based on the number of weekdays in a calendar year.  That was wrong say the Supreme Court.  The employer was entitled to make deductions only at a rate of 1/365 of their annual salary. This is the effect of the Apportionment Act 1870 (“the Act”).  This provides for accrual from day to day: Section 2.

The starting point was that the teachers are paid an annual salary on a monthly basis. The Red Book provides that they will be required to work up to 195 days a year of “directed time”, which includes teaching and other duties as directed by the Principal. In addition to directed time, a teacher is required to work for an unspecified amount of undirected time. This is defined as “such reasonable hours as may be needed to enable [the teachers] to discharge their duties effectively, including, in particular, the marking of students’ work, the writing of reports on students, the preparation of lessons, teaching material and  teaching programmes and such other duties as may reasonably be required”.  The teachers regularly performed undirected duties outside of the normal term-time hours, i.e. during evenings, weekends and/or days of annual leave.

The Act is intended to address the problems which arise in the context of periodic payments which are entire indivisible payments. The teachers’ salaries are such payments; their contracts do not provide expressly or by necessary implication for their salaries to be paid to staff pro rata in respect of divisible obligations to perform work on each day of directed time. The Act is therefore applicable to their contracts.

Section 2 of the Act deems that payments are to accrue day by day at an equal rate. Where an employment contract is an annual contract, it must therefore be apportioned on a daily basis over 365 days, yielding a daily figure of 1/365. If the employment contract was other than an annual contract, then the rate would no doubt be different .

Section 7 of the Act provides that the Act will not apply where it is “expressly stipulated that no apportionment shall take place”. This means that the principle of equal daily apportionment will apply unless the contract in clear terms addresses it and says it should not. Where the language of the contract is clearly inconsistent with this principle this will also amount to an express stipulation for the purposes of Section 7. There is, however, nothing in the teachers’ contracts which stipulates for any apportionment other than apportionment on a calendar day basis. The teachers are paid a salary to perform the duties referred to in their contracts.  Given the wide scope of the responsibilities of teachers, none of the teachers are able to carry out all of their work during directed time. Therefore they carry out much of their work in undirected time outside of the normal college day on evenings, weekends and days of annual leave. While there is a relationship between directed work and undirected work, much undirected work is important in its own right and will not necessarily be directly linked to the directed time in the sense that a failure to work for the day will lead to a proportionate reduction in the undirected work done. This is clear from the vast variety of “Professional Duties” identified in the Red Book under the heading of “Other Activities” and not “Teaching”.

Therefore, in the teachers’ case, Section 2 of the Act deems that their salaries accrue at an equal daily rate, and this is not excluded by Section 7.

This conclusion corresponds with the position as regards teachers at secondary schools other than sixth form colleges. The collective agreement (the Burgundy Book) incorporated into their contracts of employment includes an express term that when they are on strike their employers are entitled to deduct salary at the rate of 1/365 of their annual pay.

James Goudie QC


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