The Supreme Court was asked to consider this question in the case of Hartley and others v King Edward VI College.
King Edward VI College is a co-educational sixth form college. Its teachers are paid an annual salary on a monthly basis and their contracts of employment incorporate terms relating to working time from a collective agreement known as 'the Red Book'.
The teachers' contracts specified Monday to Friday as working days. However, the court accepted the evidence from teachers that they regularly performed duties in the evenings and at the weekends. Further, the Red Book provides for 'directed time', such as teaching and other duties directed by the Headteacher, and 'undirected time', which is defined as "such reasonable hours as may be needed to enable them to discharge their duties effectively". The court found that undirected time included marking students' work, writing reports and preparing lessons and teaching materials all of which often happens outside the working day.
On 30 November 2011, teachers at King Edward's took part in a full day of lawful strike action. The College subsequently made deductions equivalent to 1/260 of their annual salary from the January 2012 payroll. This was calculated on the basis of there being 260 weekdays in a calendar year.
The teachers brought legal action, alleging that the College was only entitled to deduct 1/365 of their annual pay in light of the work they did outside of term time working hours (Monday to Friday). Eventually the case came before the Supreme Court.
The Supreme Court agreed with the teachers that there should have been a deduction of 1/365 of annual salary in light of the work the teachers did outside of their contractual term time working hours Monday to Friday.
The court highlighted that the Burgundy Book, which applies to teachers in schools, expressly provides for deductions of 1/365. By contrast the Red Book contained no express provision dealing with the issue.
Although the decision in this case is relatively fact-specific to teachers in sixth form colleges, the principle around calculating the rate of deductions from pay may be applicable to other professions:
who regularly work in excess of their contracted hours
whose contracts of employment do not contain express provisions setting out whether deductions should be calculated by reference to 1/260 or 1/365
Employers may wish to review their contractual arrangements:
to see if express provisions are included concerning the rate at which pay accrues over the year
if so, whether deductions should be at the rate of 1/260 or 1/365 of annual salary
If there are no express provisions covering this area making amendments to your standard contracts of employment should be considered.