Hartley and others v Kind Edward VI College

The Court of Appeal has passed judgment on the amount to which an employer is entitled to deduct from a teacher’s salary when they have taken part in strike action.

Hartley, Panko and Monk were employed as teachers with the College. Their contractual terms drew a distinction between directed time, the period of time the teachers were required to be at school, and undirected time, the time spent on tasks in their own time in order to carry out their directed hours of teaching. On the 30th November 2011 the teachers took part in strike action. As a consequence of this, the College deducted the day’s service costs from their monthly salary, calculated as 1/260 of the annual salary. This calculation was based on teachers working Monday to Friday and took in to account all work days, including those spent on holiday.

The teachers accepted they were not entitled to be paid for the strike day but claimed that the College had deducted too much and the proper amount of deduction was 1/365 of their annual salary.

This claim had great importance to the education sector; it was estimated that if the amount to be deducted was deemed to be 1/365th the cost would be around £300,000 per strike day.

The Court of Appeal found, under the Apportionment Act 1870, pay accrued on a daily basis but did not do so at an equal rate each day, therefore the calculation of 1/365 was incorrect. The Court interpreted the teacher’s contracts as relating directed time, days of pay, to the 260 annual working days, including the days which are paid holidays. Therefore the correct deduction should calculate a proportion of the directed hours they performed and the rate of deduction here was 1/260 for each day spent on strike.

The Court commented that, even if pay did accrue on an equal daily rate, section 7 of the Act allows employment contracts to contract out of this by making a clear statement of intention that they did not intend this rate to apply. As the teachers’ contracts of employment made a distinction between directed and undirected time, this was sufficient to make it clear that they were not consistent with the principle of equal daily accrual rate, and the correct calculation was 1/260.