An important Supreme Court judgment has been published concerning the issue of pay deductions for strike days in schools. The case has taken a number of years to be determined and the decision is an important one for employers who need to carry out deductions from pay correctly to avoid tribunal claims.

In Hartley and others v King Edward VI College the claimants’ contracts of employment incorporated the ‘Red Book’ collective agreement which outlines terms and conditions for teaching staff in Sixth Form Colleges. The Red Book requires teaching staff to carry out 195 days of “directed work” i.e. teaching and an unspecified amount of “undirected work”. The time required to be spent on undirected work was not outlined in the agreement but was any work necessary to allow the teachers to undertake teaching during directed time i.e. marking and planning lessons. The claimants often carried out undirected work during evenings and weekends so they did not strictly work Monday-Friday. Their contracts provided for an annual salary payment that was paid each month, including periods when the teachers were on holiday.

On 30th November 2011, the claimants took part in a full day of lawful strike action. In January 2012 the college made a deduction of pay from their salary in respect of the strike day. They calculated the deduction as 1/260 of their annual salary as this was the total number of weekdays in a calendar year.
The claimants argued that the correct deduction was 1/365 of their annual pay in line with s2 of the Apportionment Act 1870. This section states that salaries will be considered as accruing from day to day and the claimants argue this included all days of the year.

Supreme Court Decision

The Supreme Court allowed the appeal and decided that the correct deduction was 1/365 of their annual salary. This was on the basis that the work done by the teachers was not limited to weekdays so it was not an obvious decision to calculate on a 1/260 basis. They decided that the sensible approach to take when there is an annual contract is to apportion the annual salary on a day to day basis by treating each day as 1/365 of the salary.
The Supreme Court also explained that there can be an express provision in the contract which states in clear terms that apportionment on a 1/365 basis will not take place. In these circumstances, the deduction to be made will depend upon the terms of the particular contract.

Lead Employment Law Business Partner Kimberley Pinks says “Employees working under the Burgundy Book have an express term that employers are entitled to deduct salary for strike days at a rate of 1/365 of their annual pay. This judgment agrees with this provision and removes any uncertainty for employers going forwards.”