The Supreme Court has ruled that a Sixth Form College was only entitled to deduct 1/365 of its teachers’ annual salary for a day of industrial action. It has overturned last year’s Court of Appeal decision which had held that the higher deduction of 1/260 was permissible.
The dispute arose because the College (unlike maintained secondary schools) did not stipulate in its terms and conditions how much pay could be withheld if a worker participated in industrial action. The College argued the fraction should be denominated by the number of working days in each year. The striking teachers argued for the smaller fraction, in view of the large amount of “undirected” time they worked at weekends and during school holidays.
The Court of Appeal agreed with the College, but the Supreme Court has since come out in favour of the employees. Much of the argument centred round an old and rather obscure piece of legislation, the Apportionment Act 1870, which rarely surfaces in an employment context. In the absence of an express provision in the contract, the Supreme Court thought its effect was to treat the teachers’ salary as accruing from day to day, despite that fact that their salary was calculated on an annual basis and paid monthly, and that the “directed” time was limited to week days during term time.
This decision certainly does not mean that an employer can never deduct a higher proportion of annual salary in response to an all-out strike. It will all depend on the nature of the employees’ duties and the exact terms of the contract. It is however a reminder that employers with staff whose work includes a large proportion of undirected time, such as academic and teaching staff at universities and colleges, should ensure that the exact calculation is spelled out in the contract of employment, if at all possible.