England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		The Royal Courts of Justice Strand London WC2A 2LL
		17 June 2013

MR JUSTICE JAY:

1. By his Part 8 claim form dated 21 September 2012, Mr Paul Amey, the claimant, seeks a declaration that Peter Symonds College, Winchester, the defendant, is entitled under the relevant contract of employment to deduct 1/365th and not 1/260th of the claimant's annual salary in relation to the two days on which the claimant participated in strike action. The amount of money at stake is small, £89.42, but an issue of principle is at stake here. The claimant is supported by the NUT and the defendant by the Sixth Form Colleges Forum.
2. The claimant is and has been at all material times a full-time teacher employed under a permanent contract of employment dated 1 September 2006. His employment history is set out at paragraph 7 to 8 of the witness statement of Neil Hopkins dated 26 November 2012, page 39 of the bundle. I should observe that there are some minor differences between the parties as to the claimant's workload at weekends and during holiday periods but in my judgment, these do not impact on the legal analysis and the outcome. Those turn on the true construction of the claimant's contract of employment and the salient legal principles.
3. What is material is that the claimant participated in two strike days called by the NUT, the first on 20 June 2011 and the second on 30 November 2011. Plainly, those fell within two different academic years. The defendant applied a formula for deducting salary based on the premise that the claimant's pay does not accrue over weekends. There are 104 weekend days during the course of a calendar year and 1 extra day falls to be taken into account, yielding by simple arithmetic 260 days and the defendant's approach based on 1/260th per each strike day. The claimant's approach entails an even more straightforward arithmetical calculation. On his analysis, his salary accrues over each calendar day.
4. This difference in approach turns on the interpretation to be given to the concept of "undirected time" in the claimant's contract of employment. Paragraph 6 of the claimant's first witness statement, page 57 of the bundle, avers:

"Those undirected hours may be undertaken at any time of the week including weekends and school holidays as I feel necessary."

5. Paragraph 7 of his second witness statement substantiated by the computer record points out that he did work on occasion of weekends and also during August 2011. This provides the evidential springboard for the claimant's assertion that he should be regarded as an employee whose work is not confined to 226 days' annual employment. In particular, his undirected work covers weekends, being the very period the defendant has excluded from the count.
6. Clause 2 of the claimant's contract of employment provides as follows (this is page 59 of the bundle):

"Working Time

2.1 Subject to the provisions in the other paragraphs of this section, you may be required to work for 195 days in any year of which 190 will be days on which you may be required to teach in addition to carrying out other duties. Within this 195 days, up to 1265 hours a week will be allocated reasonably to you by the Principal. Details of this directed time will be provided by the Principal.

2.2 Within the 1265 hours you may be required to teach for up to 6 hours over two evenings per week. Any teaching in the evening beyond this level would be undertaken only on a voluntary basis.

2.3 In addition to the requirements in 2.1 above, you will work such additional hours as may be needed to enable you to discharge your duties effectively including, in particular, the marking of students' work, the writing of reports on students and the preparation of lessons, teaching material and teaching programmes.

2.4 In this section, 'year' means a period of 12 months commencing on 1 September.

2.5 Details of your holiday periods will be made available to you by the Principal. You will be paid full salary during these holiday periods unless you are receiving less than full salary arising from the application of the sick pay scheme, maternity scheme etc."

7. It is common ground that the claimant's contract of employment incorporates the Conditions of Service Handbook for teaching staff in Sixth Form Colleges (the Red Book). These are provisions which have been negotiated and agreed on a nationwide basis. The relevant provisions of the Red Book are as follows (page 72 of the bundle):

"Part Time Teachers Salaries

16g. Part time teachers should be paid on a pro rata basis. Each part time teacher should be appointed to the appropriate point on the Main Scale, PSP Range or Management Range determined in the same way as if the teacher was employed on a full time basis and should be entitled to pay progression on the same basis as for full time teachers. The teacher should receive a proportion of the full time pay rate corresponding to the proportion of teaching time for which they are employed compared to a full time teacher in the same or a similar post.

... ...

Payment for Additional Days

18. Where additional days of directed time are being worked by a teacher, (see paragraph 27 in Section Two) these days should be compensated for additionally either through:

a) in appropriate cases, the selection of a relevant point on the pay spine to recognise adequately the number of additional days being worked or

b) an additional daily payment at a daily rate of 1/195th of the rate for the job (see note below) or

c) time off in lieu.

NB: Where an additional daily payment is being made, this should be at the daily rate of 1/195th of the salary appropriate for the work being undertaken which is not necessarily the salary level applying for the rest of the particular teacher's duties.

... ...

Working Time

Standard Working Time

20. Subject to the provisions in the other paragraphs of this section, a teacher may be required to work for 195 days in any year of which 190 will be days on which the teacher may be required to teach in addition to carrying out other duties. Within this 195 days, up to 1265 hours a year will be allocated reasonably by the Principal. The balance between teaching and non-teaching duties and the length of the teaching day are all subject to the reasonable direction of the Principal.

Part Time Teachers Working Time

20a. Part time teachers will be required to be available for work for the percentage of the maximum 1265 hours of directed time corresponding to the percentage of full time pay they receive.

Evening Teaching

21. As part of the 1265 hours teachers may be required to teach for up to 6 hours over two evenings per week ... ...

Undirected Time

22. In addition to the requirements in paragraphs 20 and 21 above, a teacher will work such additional hours as may be needed to enable them to discharge their duties effectively including, in particular, the marking of students' work, the writing of reports on students and the preparation of lessons, teaching material and teaching programmes and such other duties as may reasonably be required. The amount of time required for this work and the times outside the 1265 specified hours at which duties shall be performed shall not be defined by the college, but shall depend upon the work needed to discharge the teacher's duties.

... ...

Sundays, Bank and Public Holidays

26. No teacher shall be required to work on a Sunday or Bank or other public holiday.

Additional Days

27. Colleges may well find it necessary to ask teachers to undertake additional working days in excess of the 195 days referred to in paragraphs 20 and 21 above. Compensation for such additional days is set out in Paragraph 18 in Section 1. The application of any such requests should be in accordance with the terms of the Appendix to the Joint Commentary."

8. There are some other provisions which I will comment on subsequently. My attention has also been drawn to Appendix 9 of the Red Book, pages 156 to 164 of the bundle. I have in mind the provisions of paragraphs 5, 6, 11, 14, 16, and 26 but I do not propose to set those out in this judgment.
9. The parties have agreed that the proper deduction to be made where an employee has not worked due to strike action is the amount which that employee could recover in an action under or in breach of the contract of employment if the employer failed to pay for the work during the period in question.
10. In Cooper & Others v Isle of Wight College [2007] EWHC 2831 (QB), Blake J at paragraph 7 stated that this principle is "clear", and I would respectfully agree. The parties have further agreed that the formula for determining that amount depends on the terms of the particular contract of employment. The question may thus be simply stated but its answer is not so clear, hence this litigation and the detailed and able arguments which have been deployed before me.
11. Ultimately, however, I have been able to arrive at a clear conclusion as to whose arguments should prevail. In those circumstances, it has not been necessary for me to reserve my judgment beyond overnight.
12. The only authorities to which I was taken were not concerned with computational or quantum issues. For example, in Sim v Rotherham Metropolitan Borough Council [1986] ICR 897, the issues were whether the teachers were in breach of contract in refusing to provide cover for absent members of staff and, if so, whether the employer could lawfully withhold salary calculated to represent the financial loss suffered.
13. Scott J, as he then was, held that the employer's stance was correct on both those issues but quantum in that case was not in dispute and I therefore derived very little assistance from it. The defendant did draw my attention to page 916(g) to (h) (see paragraph 11 of Mr Cooper's skeleton argument) that a lot of water has flown under this particular bridge since the 1980s.
14. In similar vein, the decision of the House of Lords in Miles v Wakefield Metropolitan District Council [1987] ICR 368 is about liability (that is, entitlement to deduct), not quantum. As Lord Oliver explains at page 398(g) to (h):

"The question to be asked, therefore, is not so much 'has the employer a right to withhold from an employee who voluntarily absents himself from work wages for the period in which he is absent?' but 'is the employee entitled to sue for and recover from his employer wages in respect of a period during which he has made it perfectly clear that he is not ready and willing to perform his own contractual obligations?' To put it another way, is it sufficient for the employee simply to plead a contract for his employment over a given period or must he, in order to substantiate his claim, aver and prove something more than the mere formation of the contract?"

15. The answer to that question was in the affirmative because it was incumbent on the employee to plead the fact that he was ready, willing and able to work as a necessary plank of his cause of action. The claimant placed reliance on the following passage from the opinion of Lord Templeman in Miles at page 386(h) to 387(d):

"It is unusual for the holder of an office to take industrial action and the consequences will depend on the rights and obligations conferred and imposed on the office-holder by the terms of his appointment. But if an ambassador and the embassy porter were both on strike then I would expect both to be liable to lose or both to be entitled to claim their apportioned remuneration attributable to the period of the strike. A judge and an usher on strike should arguably be treated in the same manner. The ambassador might be required to decode a declaration of war on Sunday, and a judge might devote his Christmas holidays to the elucidation of legal problems arising from industrial action, so that it would be necessary to divide their annual salaries by 365 to define a daily rate applicable to the period of strike, whereas the weekly, daily or hourly wages of the porter and the usher provide a different basis for apportionment, but in principle it is difficult to see why there should be any difference in treatment. To decide this appeal, it suffices that there is no logical distinction between a superintendent registrar who is paid a weekly salary for a 37-hour week and a municipal dustman who is paid a weekly wage for a 37-hour week if both are on strike, both are supported by their unions and both claim from the council payment in full of their salary and wages for the duration of the strike. Middle class morality must not be allowed to place Mr. Dolittle in an inferior position in this respect."

16. Strictly speaking, Lord Templeman's observations about the ambassador and the judge were obiter and I am far from convinced that they were right. Both are entitled to holidays although judges receive no remuneration for working in weekends. In any event, the claimant's case turns on the correct interpretation of his contract of employment and without recent sight of judicial and ambassadorial contracts of employment, his case is advanced no further.
17. As I have said, quantum was not at issue in either Sims or Miles. However, the court was asked to determine quantum in a trio of cases decided at the end of the last century, namely, Re BCCI SA [1994] IRLR 282, Thames Water Utilities v Reynolds [1996] IRLR 186, and Taylor v East Midlands Offender Employment [2000] IRLR 760. In each of those cases, the court applied section 2 of the Apportionment Act 1870 to the question, and held that the upshot was that the appropriate entitlement or deduction as the case may be should be calculated on the basis of 1/365th of a year's pay. But this line of authority has fallen into disfavour, even if it has not been overruled by the Court of Appeal.
18. Thus, in Leisure Leagues UK Ltd v Maconnachie [2002] IRLR 600, the EAT held that for the purposes of section 2 of the Apportionment Act 1870, the concept of day-to-day accrual must be envisaged by reference to the number of working days in the year and not the number of calendar days. The EAT based itself on what it called "the virtually universal practice in the industry" as reflected by, amongst other things, the Working Time Regulations 1998.
19. This decision was followed by another division of the EAT in Yarrow v Edwards Chartered Accountants (unreported, 8 June 2007) where Judge Peter Clark held that the modern approach should reflect recent statutory employment provisions as opposed to what he called the Victorian Apportionment Act.
20. These authorities are persuasive only in this court. I am not convinced that the Apportionment Act can be overridden simply because it achieves a poor fit with modern employment law. It remains on the statute books and a more refined analysis is, in my view, required.
21. Section 2 of the Apportionment Act 1970 provides:

"All rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly."

22. Then, section 7:

"The provisions of this Act shall not extend to any case in which it is or shall be expressly stipulated that no apportionment shall take place."

23. The reference to accruing from "day to day" in section 2 must be to each calendar day. I have not found section 7 an easy provision to construe. Plainly, section 2 is of no application where legislative or contractual provisions expressly preclude apportionment on a day-to-day basis. The draftsman has after all used the verb "stipulated". Yet in Cooper v Isle of Wight (loc cit) Blake J went slightly further. He held at paragraph 6(b) of his judgment that section 2 was disapplied by section 7 in a case where the relevant contract of employment provided for a normal working week which excluded weekends. In such a case, the contractual scheme is incompatible with daily accrual under section 2.
24. Blake J's reasoning too is only persuasive in this court. I have pondered the matter for myself and I have concluded that his analysis is, with respect, correct. The reference to "expressly stipulated" in section 7 covers the case of countervailing contractual provisions which cannot be reconciled with daily accrual. Section 7 of the Apportionment Act thus operates in a similar way to the Interpretation Act 1978. I paraphrase, X applies unless the contrary is intended.
25. The facts of Cooper were somewhat starker than those of the present case. There, as I have pointed out, the normal working week was defined under the contract as being one of 37 hours. If the employee worked on Saturdays or Sundays, he was entitled to time off in lieu. The employee was entitled to be paid for holidays and this was part of his normal remuneration if holiday pay failed to be taken into account for the purposes of the employee's remuneration, yielding a fraction of 1/260th and not 1/228th, as the employer was contending.
26. The majority of Blake J's judgment was devoted to the definition of the correct test for fixing the level of the employer's entitlement to deduct. After conducting a careful analysis of Miles, Blake J held at paragraph 22 that the correct test is to determine whether the employee could sue for the withheld wages rather than focusing on what the overall losses to the employer were by reason of a partial non-performance.
27. Although the parties before me appear to be some distance apart from each other in their respective legal analyses conducted through correspondence, by the time the matter was argued before me in writing and then orally, the gap had narrowed considerably.
28. On opening her oral argument, Ms Kamm submitted that her principal case was that this contract on its true construction provided for accrual of salary day by day over the calendar year. This was the impact of the stipulation dealing with undirected pay and other provisions. Her alternative submission was that the contract was unclear on this topic and that it therefore followed that the exceptional provision in section 7 of the Apportionment Act 1870 did not apply and that section 2 did. My interpretation of her submission was that if the court found itself as being agnostic on the issue, she should win.
29. By the time Mr Cooper came to make his oral submissions in response, it was possible to refine the issue still further. He submitted, in my view correctly, that section 2 would be overridden by section 7 only if this contract by necessary implication established a relationship between work time and pay which was inconsistent with accrual over each and every calendar day. Necessary implication was to be determined objectively on standard contractual principles.
30. Mr Kamm certainly did not resile from this formulation and for at least two reasons she was right not to. In my judgment, it is to be derived in paragraph 6(b) of Cooper v Isle of Wight College, which I have already summarised and with which I agree. In the end, Ms Kamm placed more weight on her alternative submission than on her primary one. As I have noted her submission in reply, "The necessary implication does not arise here".
31. The issue I have been asked to determine was left open by Mackay J in Smith v Kent County Council [2004] EWHC 412 (QB) where he stated that were the matter not expressly catered for by the Burgundy Book:

"... obvious arguments would take place between employers and employees as to whether the 'bare' 195 days, as here, would be the right measure to quantify the entitlement to deduct or whether some additional and if so what allowance should be made for extra duties to reach the figure giving the true value of a teacher's working day lost by strike action."

32. I have set out the law in some detail, notwithstanding that as I have already said what originally appeared to be a legal chasm has narrowed to a hiatus. Looking at paragraph33 of Ms Kamm's skeleton argument, sub-paragraphs (a) to (b) are agreed; sub- paragraph (e) is in dispute to the extent that I have already identified.
33. At the heart of Ms Kamm's able argument was the submission that the undirected time is a key part of the teacher's duties and is something qualitatively different from directed time. Further, the correlation between directed and undirected time, which the claimant has conceded to some extent in paragraph 6 of his second witness statement, is very loose indeed. Looking at the contract as a whole, including the provisions dealing with extra directed time, holidays, and sick pay, it is sufficiently clear that the accrual of salary is over each calendar day over the course of the year. Ms Kamm further submitted that I should bear in mind that part-time teacher's pay looks at hours, not days worked, and that this should apply by analogy for present purposes.
34. Mr Cooper recognised that the necessary implication test placed a reasonably high burden on him. He drew a distinction between three types of case: first, where the contract expressly provided for the days and hours to be worked (I should interpose that this was the sort of contract in play in Cooper and indeed the vast majority of the cases the courts have previously had to consider); secondly, where the contract says nothing about working time, in other words, where it is effectively at large (this was the premise of Lord Templeman's obiter observation in Miles even if a closer examination of judicial and/or ambassadorial contracts might have subverted it); then, thirdly, there was the intermediate category of case into which the instant case clearly fell. In such a case, it would be necessary to consider on which side of the line it fell, having regard to the criteria that I have already mentioned and, additionally, the nature and detail of the contractual stipulations dealing with working time.
35. In my judgment, the correct starting point is to analyse and construe the key provisions of this contract of employment, which are to be found in clauses 21(2) to (5), as largely reflecting the Red Book. The principal obligation is to perform 195 hours of directed time during the course of an academic year. In order to protect the teacher from an excessive daily work load, this is additionally kept at 1265 hours' work a year.
36. In practice, these hours will be spread relatively evenly over the working week, which runs from Mondays to Fridays. Sundays and bank holidays are specifically excluded by clause 26 of the Red Book. Saturdays are not. However, the unchallenged evidence is that this college does not teach on Saturdays (see the witness statements from Neil Hopkins, paragraph 6.5.4, pages 38 to 39) and I would be extremely surprised if any other Sixth Form college did teach on Saturdays. In reality, therefore, and applying standard objective criteria to the present case, this contract provided for a five-day week in term time.
37. This contract of employment also stipulated for paid holidays (see clause 2.5), bringing the instant case right within the ratio of Cooper although there it was the employer who was contending that the holiday should be excluded from the count. I agree with Mr Cooper's submission that in the present case, we see an element of the consideration moving from the employer which does not attach to any particular work. Undirected time is catered for by clause 2.3 and it is reflected by clause 22 of the Red Book, which limits it to:

"... such reasonable additional hours as may be needed to enable [teachers] to discharge their duties effectively including, in particular, the marking of students' work, the writing of reports on students and the preparation of lessons, teaching material and teaching programmes and such other duties as may reasonably be required."

38. Ms Kamm has characterised this undirected time as different in character to directed time. Although it is capable of being carried out at the teacher's discretion on any day of the year, in my view, it is incorrect to designate it as different in character to directed time in the sense that Ms Kamm has argued.
39. I would prefer to describe it as ancillary or adjunctive to directed time, which is carried out solely to ensure that directed time is as effective, instructive, and pedagogic as possible. It has no life of its own, still less a quality as a core activity. Further, when one considers weekends, for example, these are different in character from Mondays to Fridays during term time. A teacher can organise his or her affairs to avoid working on any particular day of the weekend but cannot do so in relation to other term-time weekdays.
40. Mr Cooper invited me to consider the panoply of provisions in the Red Book dealing with part-time employees: clauses 16(g) and 22(a), payment for additional days; clause 18, special leave; clause 28; and sick pay, clauses 62, 71, and 73. I endorse his submission that in each instance, one may discern a link between remuneration on the one hand and "working days" on the other, with working days being a synonym for directed time. Only in the instance of part-time employees is the focus on hours rather than days worked. While one may readily apprehend the reason for this, most importantly, for Mr Cooper's purposes, the nexus is not between remuneration and undirected time.
41. Mr Cooper gave me a number of examples to illustrate his point. These varied in cogency but if teachers were to "go slow", to use terminology from a generation ago, in relation to undirected activities alone, the employer would not be entitled to make any deduction as against pay because its quantum can never be ascertained. This vouches Mr Cooper's key point that there is no link between remuneration and weekend work in any meaningful or quantifiable sense.
42. These points amongst others demonstrate that there is a general correlation between directed and undirected activities, and what this contract is or might be deemed to be concerned with for measurement or quantification purposes is the link between pay and the ascertainable or fixed element of the work performed, namely, the directed time. The necessary implication is that pay is tied to the measurable part of a teacher's work with anything else being too uncertain to be capable of being brought into account for these purposes.
43. The starting point for Ms Kamm's submissions was the contract's repeated reference to the obligation to undertake undirected time (see, for example, paragraph 35(a) of her first skeleton argument) but this contract places working time or directed time at the metaphorical vanguard with undirected time being very much subordinate. The position would be different if this employer could require a teacher to work on any calendar day but that is not the position here. Organisation of undirected time is entirely at the teacher's option, albeit determined to some extent by the exigencies of the working week and other personal commitments. There are some days on which a teacher will never approach his work yet Ms Kamm's argument involves the anomaly that remuneration is indiscriminately apportioned to or over all the calendar days.
44. It follows that in my judgment, the defendant has demonstrated that section 7 of the Apportionment Act 1870 applies and not section 2 and that by necessary implication, there is the requisite degree of nexus between work time and pay, more specifically linking pay to directed time and/or apportioning it to normal teaching days and to holidays. This application for declaratory relief is therefore refused.