How much salary should be withheld after a strike?

It is axiomatic that if a salaried Employee goes on strike; you - the Employer - are entitled to withhold money from his wages to reflect the work not performed.  But how much should be withheld? Such was the dilemma that faced the Court of Appeal in the recently decided case of Hartley, Panko and Monk v King Edward IV College. Employment lawyer Andrew Buckley provides insight. 

The case of Hartley concerned teachers who took strike action on 30 November 2011. Their contracts of employment provided their work was made up of 'directed' and 'undirected' time.  Directed time is time when the teacher is required to be at school, much of which is spent teaching - this amounted to 190 days per annum. Undirected time is time when the teacher has to write reports, prepare lessons, mark students' work and perform a variety of other administrative tasks - this being additional to the directed time. There is an obvious correlation between directed and undirected time; presumably it is difficult for a teacher to give a lesson that hasn't been prepared and pupils would be unhappy if their homework was never marked.

The teachers in Hartley took 1 day of strike action, and the college deducted 1/260th of their salary  - there being potentially 260 working days in a year (5 days a week x 52 weeks of the year). The teachers contended that too much of their salary had been taken and argued that the correct amount of deduction was 1/365th of their salary. In the County Court, they agreed in a consent order that the correct deduction was 1/365th of their salary (because the County Court was bound by precedent of a higher court) but appealed from that consent order to the Court of Appeal. They argued that the Apportionment Act of 1870 meant that their salary accrued from day to day and consequently this meant that the correct amount of the deduction was 1/365th of their salary.

Giving the leading judgment, Lord Justice Elias observed that the amount in question for the individual teachers was small, but if their argument was correct, it would cost the education sector approximately £300,000 per strike day.  In a common sense judgment, he decided that the correct apportionment was 1/260th of the teachers' annual salary.  He observed that if the teachers' argument was correct, then the following paradox would occur:

2 teachers job-share - one working the first 2 weeks of a month and the other the back 2 weeks of the month.  Both resign and leave in the middle of the month. According to the argument advanced, both would be entitled to the same amount of apportioned salary, but one would have provided services but the other wouldn't.

Furthermore, as Lord Justice Elias observed, directed and undirected working time are intrinsically linked; if the teacher does not deliver a lesson, presumably they don't spend time preparing it. Even if they did there would be little value to the Employer in them so doing.


Taking the decision reached to its' natural conclusion, Messrs Hartley, Panko and Monk (the striking teachers) were lucky not to have 1/190th of their salary deducted for the strike day as 1/190th reflects the actual teaching time rather than 1/260th being teaching time plus holidays. 

Need advice?

To discuss this or for further information, please get in touch with myself in Bedford on 01234 270600 or by email at, or in Cambridge please contact Nick Sayer on 01223 411421 (, and in Milton KeynesMaria Gallucci ( on 01908 202150.

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