You are not entitled to be paid for the time you spend on strike, but the amount docked will depend on what type of institution you teach in

In maintained schools in England the Burgundy Book says that deductions for teachers on strike should be calculated on the basis of a day’s salary being 1/365th of a year’s salary – therefore a teacher who misses one day through strike action can expect to lose 1/365th of his or her annual salary.

But the Court of Appeal (CA) recently had to address the question of whether a different daily rate can be used (Hartley and others v King Edward VI College).

Three teachers at King Edward, a sixth-form college, took part in a one-day national strike called by their union. The college sought to withhold one day’s pay from each of them, calculated on the basis of 1/260th of their annual salary (260 being the number of working days and paid holidays in a year, excluding weekends).

The teachers said this was too high and argued the correct daily rate was 1/365th of their annual salary.

The Burgundy Book did not apply as sixth-form colleges are subject to a different collective agreement, known as the Red Book, which does not contain a specific clause dealing with the rate at which pay should be deducted in the event of a strike.

Academies need to distinguish between transferring teachers and new employees

The CA decided that the correct daily rate to be deducted was 1/260th of annual salary. To work out the rate at which the teachers’ pay is accrued (and so how much to deduct for each day the teachers missed through strike action), it was necessary to look at the terms of the teachers’ employment contracts.

Under their contracts they could be required to work 1,265 hours per year during 195 scheduled days (directed working time).

The teachers also worked in their own time preparing lessons, marking papers, writing reports, etc. undirected time).

The pay of part-time teachers was calculated according to the amount of directed time they worked: 50 per cent of 1,265 hours equalled 50 per cent of annual pay and an extra day’s work was calculated at 1/195th of full pay.

For this reason the judge agreed there was a close link between directed time and pay – work done in undirected time was ancillary.

Logically, therefore, he said the rate of deduction for a strike day could be 1/195th of the annual salary. However, as the work load in undirected time would not necessarily be reduced (because a day’s teaching was lost to strike action) he accepted the college’s argument – that the deduction should be 1/260th – was sensible.

What are the implications for academies?

Academies have greater freedom than maintained schools to set their own employment terms for teachers. The School Teachers Pay and Conditions Document (STPCD) – which contains provisions as to directed and undirected time similar to those in the Red Book – only applies to maintained schools and not to academies, and the Burgundy Book will only apply if the particular academy chooses it. Can an academy therefore provide for a different rate of deduction in respect of strike days than the 1/365th deduction?

In theory, yes. But in practice academies need to be careful to distinguish between teachers who have transferred from a maintained school on conversion, and new employees recruited once the academy is up and running.

Transferring employees will have the terms of the STPCD/Burgundy Book as part of their employment contracts; the academy cannot vary those terms if the reason is the conversion to academy status, unless they can show an economic, technical or organisational reason.

New teachers can be recruited on different terms. If an academy wants to apply a particular rate of deduction for strike days it would be best advised to state that rate in the teachers’ employment contracts.

For a more in depth article on the Hartley & Others v King Edward VI College decision see www.blakemorgan.co.uk/news-events/news/2015/05/14/if-sixth-form-teacher-goes-strike-how-much-their-p/