In the recent case of Hartley and others v King Edward VI College, the Court of Appeal held that an employer was entitled to withhold one working day’s pay, rather than one calendar day’s pay, when teachers took strike action for one day.  

The Claimants in this case were employed by the Respondent (“the College”) as teachers.  On 30 November 2011, they took strike action.  The College deducted from their monthly salary what it considered to be the appropriate amount in respect of the service which the teachers had failed to provide that day – 1/260 of their annual salary.  This was based on the fact that the teachers’ working days were specified in their contracts as “Monday to Friday”, so the daily rate was based on five working days a week.  

The Claimants contended that, since their contracts distinguished between directed undirected time (the former being when the teachers were required to be at school and the latter being when they carried out other duties in their own time, such as preparing lessons and marking papers) and by virtue of section 2 of the Apportionment Act 1870 (“AA 1870”), their salary accrued day to day at an equal daily rate and the proper deduction should therefore have been based on a rate of 1/365.

Although the judge noted that the consequences of the litigation for the individual Claimants in this case were small, for the sector as a whole a finding in the Claimants’ favour would cost around £300,000 per strike day.  

The judge suggested that the AA 1870 could apply to all employment contracts and section 2 of the AA 1870 provides that payments should be apportioned on a day to day basis.  The judge denied that section 2 implied an “equal daily accrual”.  Instead, the rate or manner in which salary is accrued should be established by interpreting an employee’s contract terms in light of section 2.  The judge held that the natural interpretation of the teachers’ contracts was not that pay would accrue equally day by day and the fact that work could be carried out on any day of the year also would not justify such a conclusion.  

This case serves as a useful reminder that when working days are defined in an employment contract, employers will generally be able to withhold salary for strike action based on a daily rate calculated by reference to working days in the year, rather than calendar days.  Even in relation to teachers, who carry out a fair proportion of their work outside working hours, this decision limits an employee’s ability to claim that their pay accrues at an equal rate for every calendar day.  Although it is still open to an employee to claim that their pay should be deducted at the rate of 1/365 for every day that strike action is taken, they will be unlikely to succeed where an employer can show that the terms of the employment contract are inconsistent with such an approach.