21 July 2015

Deduction of Wages for Strike Action – What is a day’s pay?

As we are aware, when teachers go on strike Schools can withhold their pay. How much can the School withhold?

In the case of Hartley and others v King Edward VI College [2015], the Court of Appeal dismissed an appeal against a County Court’s judgment that an employer was entitled to deduct wages at a daily rate of 1/260 (based on working days in the year) rather than 1/365 (based on calendar days).
This case concerned three teachers employed by King Edward VI College who went on strike for a day. The College deducted one day’s pay from their wages calculated at a daily rate of 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 and so the daily rate was based on five working days a week (5 X 52 weeks a year = 260 working days in a year).The Claimants accepted that they were not entitled to pay for the day of the strike. However, they argued that deductions should have been based on a rate of 1/365 as pay accrued equally from day-to-day for each calendar day, not just working days (as time is taken preparing lessons and marking papers etc.).

The Court of Appeal dismissed the appeal. It held that the rate of accrual of salary should be construed on the basis of the contractual terms. The teachers’ contracts specified working days as Monday to Friday. The Court therefore held that the deduction of 1/260 was correct.

However, the Court of Appeal made it clear that a deduction based on calendar days would be appropriate in the absence of anything to the contrary in the employment contract.

Schools may therefore be entitled to deduct a day’s pay for absence such as strike or snow days at the rate of 1/260th of the employee’s salary, however this will depend on the contractual terms. The contract should either make reference to how a day’s pay is calculated, or otherwise specify working days, to ensure that a day’s pay may be calculated at the appropriate rate.

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Emilie Darwin, Partner
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