Hartley & Ors v King Edward VI College

The Apportionment Act 1870 requires periodic salary to be treated as accruing from day to day, but it does not necessarily impose equal accrual on every calendar day. The amount referable to a day of industrial action is determined by construing the employment contract, subject to the Act’s requirement that salary be apportioned daily. For teachers, directed teaching time may provide the principal measure of the value of a working day, while undirected preparation and administrative work may be ancillary. A contractual scheme may displace equal daily accrual where its terms are clearly inconsistent with that principle, including by necessary implication. On the contracts considered, a deduction calculated by reference to 260 working days was lawful.

Three teachers employed by King Edward VI College struck on 30 November 2011. The College withheld salary calculated at 1/260 of annual pay for that day. The teachers contended that the Apportionment Act 1870 required a deduction of 1/365.

The County Court entered judgment for the College following an agreed consent order, the parties having treated Jay J’s decision in Amey v Peter Symonds College [2013] EWHC 2788 as binding. The Court of Appeal considered the scope and effect of the Act, the meaning of daily accrual, and whether the contractual arrangements excluded equal daily accrual.

1. Appeal dismissed. Elias LJ, with Tomlinson LJ and Sales LJ agreeing, held that the Apportionment Act 1870 applied in principle to the teachers’ contracts. Its purpose was to permit salary to be apportioned by reference to service rendered during a payment period; without it, the common-law rules on entire contracts and substantial performance could produce unfair results. Salary therefore accrued from day to day, including in employment relationships of this kind (Item Software (UK) Ltd v Fassihi [2004] EWCA Civ 1244; [2005] ICR 450).
2. Section 2 did not itself require equal daily accrual at 1/365. The relevant daily rate had to be derived from the contract, modified by the statutory requirement that payment be treated as accruing daily. Equal daily accrual might be the ordinary default, but it was not an inevitable statutory rule.
3. Even if equal daily accrual were inherent in section 2, section 7 could exclude it where the contract was clearly inconsistent with it. An express stipulation did not require words expressly referring to the Act. A clear contractual inconsistency, including one arising by necessary implication, was sufficient.
4. The teachers’ directed hours were closely linked to pay. Undirected preparation, marking and administrative work were ancillary to directed work, although not wholly capable of precise allocation. The contractual structure supported a 260-working-day basis, which the College accepted and which possibly favoured the teachers compared with a strict 195-day calculation.
5. The Act remained relevant because it enabled the position to be assessed day by day; it did not mean that the same amount was earned on every day. The Court therefore upheld the 1/260 deduction. Tomlinson LJ and Sales LJ agreed.

• Court of Appeal (Civil Division): [2015] EWCA Civ 455. Appeal dismissed.
• County Court: Judgment for King Edward VI College was entered following an agreed draft consent order, the parties treating Amey v Peter Symonds College [2013] EWHC 2788 as binding.