Quantifying how much an employer can withhold from a teacher who lawfully goes on strike

To oversimplify: Hartley & ors v King Edward VI College [2017] UKSC 39 dealt with a case where teachers had lawfully gone on strike, and where their employer had withheld salary apportioned, pro rata, over their actual working year. The teachers were attached to a sixth form college which, unlike state-maintained secondary schools, did not have an express term about the rate of deduction (in secondary schools, this is 1/365). Since weekends amount to 5/7 of the year, this meant that that each day of strike action attracted a deduction of 1/260 of salary. Was the employer entitled to do this?

“No”, said the Supreme Court.

The issues in the appeal were as follows. The Apportionment Act 1870 says that salary is to be considered as accruing from day to day, and is apportionable in respect of time accordingly (ss 2 and 5 read together). s 7 of the Act says that it does not apply to cases “in which  it is or shall be expressly stipulated that no apportionment shall take place.” Did the appellants’ contracts of employment provide, expressly or by necessary implication, for their salary to be paid pro rata so that 1870 Act did not apply? What did “from day to day” mean in the context of s 2 of the 1870 Act? And what is the correct construction of s 7 of the 1870 Act?

The Court found that there was no provision in the contracts of employment for the salary to be paid pro rata. The 1870 Act therefore applied. The central question was the application of s 2 to the contracts of employment. The Court noted that teachers’ contracts provide for a substantial portion of “undirected working”, i.e. time spent doing the work which is necessary to maintain the on-the-clock classroom work, and that teachers will invariably also work evenings, weekends, holidays, etc., on an ad hoc basis to cope with the workload.

Given this, the difficulty with the employer’s figure of 1/260 was that,

it makes no sense to choose a calculation of 1/260 of the annual salary, which assumes only week day working . . . [a]lthough . . . a case might perhaps be made for some othe rfigure, the only alternative figure put forward during the argument was 1/365 (para 29)

And although 1/365 might give some odd results, “that is almost always true of deeming provisions.” The correct interpretation of s 2 Apportionment Act 1870 is that “from day to day” means “from [calendar] day to [calendar] day”. (The Court of Appeal, in contrast, had concluded that the Act was aimed at ensuring an entitlement to such portion of salary as was referable to the period of service – but that didn’t require payment to accrue at an even rate).

Lastly, what about section 7? On its face, s 7 said that there must be an express provision in the contract which has the effect of disapplying the statutory formula so that “no apportionment shall take place” (para 38). And that was the correct interpretation.

So, absent an express provision in the contract, the principle of equal daily accrual will be the obvious principle to adopt. But (para 41):

In any case the precise figure will depend upon the true construction of the particular contract . . . [a] critical feature of the instant case which leads to a figure of 1/365 is that the contracts are annual contracts. If the contracts were not annual contracts the position would be very different . . .

This case, of course, is not as wide-ranging as the headline suggests, but it does provide extremely helpful guidance in relation to apportionment – not only in relation to teachers, but also in relation to other workers, particularly professionals, whose work will inevitably involve some duties which form part of regular working hours, and some which do not.