Calculating strike pay

26 May 2017

If teachers lawfully strike for one day, at what rate can the employer make a deduction of pay?

1/365 of annual pay, held the Supreme Court in Hartley v King Edward VI College.

The Supreme Court unanimously held that, unless contracts specifically state otherwise, any deduction of pay in relation to teachers taking lawful strike action must be at a rate of 1/365 of their annual pay, not 1/260 as the college had done.

In arriving at its judgment, which overturned the Court of Appeal, the Supreme Court closely analysed the wording of the Apportionment Act 1870 which is intended to address the problems which arise in the context of periodic payments. The Act provides that salaries shall be "considered as accruing from day to day, and shall be apportionable in respect of time accordingly"

The College had made a deduction at 1/260 relying on the fact there were 260 working days in a year. The Supreme Court considered the evidence from the teachers that demonstrated that their work was not limited to time teaching and they regularly performed their duties during evening, weekends and/or days of annual leave. Accordingly it was appropriate to have a deduction of 1/365.

This is a fact specific decision applicable to teachers, however the principle may be applicable to other employees whose days of work are not ascertainable.

With thanks to Daniel Barnett’s employment law bulletin for providing this update.