Amey v Peter Symonds College

Salary deductions for strike action depend on the true construction of the particular employment contract. The default rule in section 2 of the Apportionment Act 1870 is daily accrual over calendar days. That rule is displaced under section 7 where the contract necessarily implies a different relationship between remuneration and work time. A contract may link salary to ascertainable directed working time, normal teaching days and paid holidays, while treating undirected duties as ancillary and unquantifiable. Work which may be performed at the employee’s discretion on weekends or during holidays does not necessarily make salary accrue over every calendar day.

The claimant, a full-time teacher, sought a declaration concerning the amount deductible from his salary for two days of strike action. His employer calculated the deduction at 1/260th of annual salary, treating remuneration as linked to working days. He contended that his contractual obligation to undertake undirected work, including at weekends and during holidays, required a 1/365th calculation. The central issue was whether the contract, read with the Conditions of Service Handbook for teaching staff in Sixth Form Colleges, displaced the statutory daily-accrual rule.

1. Applicable principle. The amount deductible for strike action is the amount the employee could recover in an action under or in breach of the employment contract for the period in question. The quantum therefore depends on the contract’s proper construction.
2. Statutory framework. Section 2 of the Apportionment Act 1870 ordinarily treats periodical payments as accruing from day to day, meaning calendar days. Section 7 displaces that rule where the contract expressly stipulates, or by necessary implication establishes, a scheme incompatible with daily accrual. The necessary implication is determined objectively by ordinary contractual principles.
3. Construction of the contract. The contract principally linked remuneration to 195 days and 1,265 hours of directed time in the academic year. The contractual scheme, including the exclusion of Sundays and bank holidays, the college’s five-day teaching week and provision for paid holidays, linked pay to normal teaching days and holidays. This placed the case within the ratio of Cooper v Isle of Wight College [2007] EWHC 2831 (QB).
4. Undirected time. Undirected duties were ancillary to directed time. Although they could be undertaken on any day, they were subject to the teacher’s discretion and were not sufficiently ascertainable or quantifiable to form the basis of salary apportionment. The necessary implication was therefore that section 7 applied and section 2 did not.
5. The application for declaratory relief was refused. The employer’s 1/260th approach prevailed.