I suspect your answer to that question depends on whether you are a teacher or not.
For teachers it probably feels like they never stop; for those of us who are not teachers, the seemingly endless school holidays may lead us to feel that they never do any work!
According to the Supreme Court of England and Wales, the answer is 365 days a year.
Really?
Well, no. As so often with legal questions, the answer depends on why you are asking the question.
In this case (Hartley and others v King Edward VI College), the question was being asked in the context of a dispute about deductions from teacher’s pay for days they were on strike.
This was a sixth-form college and therefore subject to the provisions of the Conditions of Service Handbook for Teaching Staff in Sixth Form Colleges, commonly known as the Red Book.
The Red Book provides that colleges can deduct pay from staff for each day they are on strike. The dispute was about the rate used to calculate deductions.
The college deducted pay at a rate 1/260th of their annual pay for each day the teachers were on strike.
The college based that on the straightforward argument that if you take the total number of full days in the year of 365 and deduct the number of weekend days, you arrive at 260.
The Conditions of Service for School Teachers in England and Wales (the Burgundy Book) which applies for secondary schools rather than sixth form colleges provides for a rate of 1/365th.
Understandably the teachers felt the 1/260th deduction was unjust and they brought a claim in the County Court for breach of contract, pleading their case on the basis of section 2 of the Apportionment Act 1870.
That section 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”
Section 5 of the Apportionments Act 1870 provides amongst other things:
“In the construction of this Act -
…
The word ‘annuities’ includes salaries and pensions.”
Before the case could be decided, the High Court decided on the almost identical case of Amey v Peter Symonds College.
In that case, the judge held that “day to day” meant calendar days, i.e. 365 days but that section 7 of the Apportionments Act meant that the Apportionments Act did not apply.
Section 7 states that “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.”
The judge in Amey held that the claimant’s contract provided that his pay was tied to his ‘directed work’. Teachers’ working time is basically split into two kinds—Directed Time (or Standard Working Time) and Undirected Time.
Directed Time amounts to 195 days a year on 190 of which the teacher is expected to teach classes as well as their other duties. Up to 1,265 hours a year during this period will be allocated by the Principal – hence directed time.
Undirected Time basically covers all the other things a teacher is expected to do such as the marking of students’ work, the writing of reports on students and the preparation of lessons, teaching material and teaching programmes, etc., etc.
As most teachers will bear out, the activities expected to be carried out by teachers cannot realistically be carried out during the few hours of term time that are not taken up with “directed” duties.
Teachers therefore frequently work outside of school hours, during school holidays and at weekends.
Such was the case for the claimants in these cases. They accordingly appealed and eventually ended up in the Supreme Court.
The college’s argument was that the pay has to be apportioned by reference to the directed hours only (based on the Court of Appeal’s decision that s. 2 did not require equal daily accrual but rather a rate which is appropriate in the context of the contract to the particular day in question).
The teachers argued that that Apportionment Act applies and for an annual salary, pay has to be apportioned on a day by day, i.e. 1/365th basis.
The Supreme Court held that given that everyone accepted that teachers did not just work on weekdays, it made no sense to apportion their pay on that basis.
They held that it would be wrong to say that teacher’s pay is directly linked to the directed hours or that the amount of undirected time is inextricably linked to the directed time (i.e. it is wrong to say that what teachers are paid for is teaching, everything else is ancillary and not ‘work’ in its own right).
The Supreme Court held that Undirected Time while often linked to Directed Time activities is not necessarily always so linked and that the work falling under Undirected Time is part of the fundamental duties of teachers and reflected in their annual salary.
The Supreme Court indicated that if arguments had been put forward for another basis of calculation, they would have considered it and might have preferred it to 1/365th—but no one did.
There is a lesson there as to the benefits of putting forward an alternative, fallback argument although to be fair it is hard to see what alternative the college could have put forward.
As the only other argument was for 1/365th that is what the Supreme Court went with.
They stated that while not necessarily “mathematically justifiable”, it was an approach which is “broadly fair” on the basis that salaries are paid every month including periods when the teacher is on holiday and that teachers work spread throughout the year and not just during directed time but also evenings and weekends.
As always different facts, provide different results. Your mileage may vary, this is not legal advice.
If you do need legal advice on this or any other employment law issue, please contact us here.