DEDUCTION OF PAY DURING INDUSTRIAL ACTION IN SIXTH FORM COLLEGES
GUIDANCE TO NUT REPS AND MEMBERS
Employers can respond to lawful industrial action by employees by making deductions from their pay. This document gives NUT advice on the method which should be used to calculate a day’s salary deduction for sixth form college teachers.
The Sixth Form Colleges Forum has recently issued advice to colleges on deductions following industrial action. The SFCF advises colleges (Employers’ Bulletin EB05/11 dated May 2011) that, for all staff (teaching and non-teaching) deductions for industrial action should be 1/260th of a year’s pay for each day of action. That advice is based on the 2008 High Court judgment in the case of Cooper v Isle of WightCollege which determined that employers must include annual leave and bank holidays when calculating deductions for strike action. The High Court agreed that employers may disregard the weekend and other non-working days but not annual leave or bank holidays when establishing the formula for deductions. This led in the particular case, which involved a member of support staff, to the conclusion that a deduction of 1/260th of pay was appropriate.
For school teachers, the Burgundy Book national agreement (Paragraph 3.2 of Section 3) provides that a day’s pay for the purposes of deduction is 1/365th of annual salary:
“.... where ...... unauthorised absence (e.g. strike action) occurs, deductions of salary shall be calculated at a daily or part daily rate based on the day’s salary being 1/365th of a year for each day of the period of absence.”
School teachers can be directed by their employersto work for up to 195 days and 1265 hours per year but are also required to work as many additional hours as are necessary to discharge their responsibilities. This additional working time obligation is not limited to the above 195 days. They do not have any contractual holiday entitlements or overall limits on working hours. The provision for deduction at 1/365thper day is not an additional contractually agreed benefit but is based upon the working time requirements provided in the STPCD.
Teachers working in sixth form colleges are not subject to the Burgundy Book since the implementation of the national agreement on pay and conditions for sixth form colleges, which is silent on the issue of deduction for strike action.
The working time obligations of teachers in six form colleges are, however, similar to those for school teachers.They may be directed to work for up to 195 days and 1265 hours but are also required to work as many additional hours as are necessary to discharge their responsibilities. Again, they do not have contractual holiday entitlements or overall limits on working hours.
The NUT position is that the fact that teachers in sixth form colleges are subject to similar working time obligations conditions as school teachers means that there should be similar treatment in terms of deductions during industrial action. Although the national agreement for sixth form colleges is silent on the issue of deductions for industrial action, the above analysis suggests that the Burgundy Book formula should be applied in sixth form colleges as well. This may be confirmed by means of a specific contractual provision (as is the case in some colleges). Any contractual provision purporting to apply a different and higher deduction, however, should not be regarded as effective and may be challenged.
The NUT therefore advisesthat sixth form collegesshould make any deductions for industrial action at a daily rate of 1/365. The NUT will in particular challenge any attempt to make a deduction at a daily rate of 1/195th which is not supported by case law or nationally agreed arrangements and which conflicts with the SFCF advice to colleges and the above legal principles.
National Union of Teachers
June 2011