Teachers’ Strike Pay
Natalie Ruane explains what an employer can legally deduct from their employees’ wages for each day they are on strike.
The recent landmark, unanimous Supreme Court case of Hartley v King Edward VI College has held that employers must deduct 1/365th of annual pay per day that a teacher is on strike rather than the previously held view of 1/260th, unless the employment contract states otherwise.
The two claimants were teachers, their employment contracts were made up of terms from a national collective agreement known as ‘The Red Book.’ The Red Book details the difference between ‘directed time’ (1265 hours per annum) during 195 scheduled days, of which 190 are teaching days and ‘undirected time’ which describes when teachers have to work in their own time. i.e. marking, admin, preparing work.
In November 2011, the teachers were part of a legal, national strike for one day. Following this strike action, the College withheld 1/260th of their salary. The reasoning behind this decision was the assumption that the teachers worked Monday – Friday. All work days were counted, even holiday days when they were not technically at the school. The formula used for this sum was 5 working days per week x 52 weeks in the year which totalled 260 working days.
County Court Proceedings
The teachers brought proceedings in the County Court, on a breach of contract claim. The teachers argued, and produced evidence to prove that their work was not strictly limited to these 260 days as their roles included evening work, weekend work and unpaid overtime. They showed that the college should only have deducted 1/365th of their yearly pay. This argument was based on s.2 of Apportionment Act 1870, which states that ‘All…annuities…shall…be…considered as accruing from day to day, and shall be apportionable in respect of that time accordingly’.
The County Court followed the earlier 2014 judgement in Amey v Peter Symonds College, which involved very similar circumstances surrounding a teacher employed on terms incorporated from The Red Book. In Amey, it was held that the contract of employment was the correct starting point. The terms and conditions of the contract must be analysed. Following consideration of the contract, a connection was found between the teacher’s salary and his teaching hours. It was agreed that they did carry out additional duties outside school hours, this was considered to be necessary to support his role, and unmeasurable. The court held that teachers’ salaries only accrued over the 260 normal teaching days, and not 365 days over the year.
Court of Appeal
The teaching staff from King Edward VI College appealed to the Court of Appeal, and pushed that the judgement reached in Amey was wrong. The Court of Appeal upheld the original decision of the County Court. They held that S.2 of the 1870 Act should be read in conjunction with the construction of the employment contract, and that working outside of school time was necessary for the role.
Supreme Court Judgement
The teachers then appealed to the Supreme Court. The Supreme Court upheld their appeal.
In arriving at its judgment, the Supreme Court looked closely at the wording of the Apportionment Act 1870 which was drafted to ease the issues which can occur with periodic payments. The teachers’ wages were held to be exactly the type of payments this Act was designed to address. The Red Book contracts did expressly provide for or imply that their salaries are paid pro rata. The Act states by using the word ‘considered’ that wages shall be accrued day by day, at an equal rate. The employees worked on annual contracts, which included all 365 days. There was nothing to confirm that the apportionment should be made on just their teaching days. It was held that given the scale of teachers’ duties, it would be impossible for employees to carry out all their work during the ‘directed hours’ and that the work carried out in their own time is just as important as teaching duties.
For any other queries on strike pay, contact Natalie Ruane at firstname.lastname@example.org.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.