Deducting pay 




Employers can generally deduct pay for days when a worker is on strike, since there is no general right to be paid if a worker is not ready or willing to perform their contractual duties (Miles v Wakefield MDC [1987] AC 539). The amount to be deducted for each day’s pay may be specified in the employment contract or a collective agreement. For example, under the Burgundy Book (the School Teachers Conditions of Service), a day’s deduction for strike must be calculated as 1/365th of annual pay (Smith v Kent County Council [2004] EWHC 412).


In Hartley v King Edward VI College [2015] EWCA Civ 455, the Supreme Court ruled that the daily pay to be deducted from striking six form college teachers whose contracts are subject to the “Red Book” (Conditions of Service Handbook for Teaching Staff at Sixth Form Colleges) is also 1/365 of annual salary (not 1/260, as argued by the school). The Supreme Court accepted that the teachers’ contracts required them to work whatever extra hours were needed (known as “undirected time”) to discharge their duties effectively, including regular evenings, weekends and during the holidays, to meet their contractual obligations. 




Where workers take industrial action short of strike, such as a work to rule or a marking boycott, the employer may still be able to deduct a full day or shift’s pay. However to do so, they should have spelled out clearly in advance, for example in the written contract terms or in a notice before the start of the action, that part-performance of contractual duties is not acceptable and will not be paid. 


If a contract states clearly that an employee taking industrial action will not be paid, regardless of whether action is all out or partial, a striking worker will have no claim for the value of work done (Spackman v London Metropolitan University [2007] IRLR 744). 


In Wiluszynski v LB Tower Hamlets [1989] IRLR 259, the Court of Appeal ruled that the employer could deduct a full day’s pay even though the worker only refused to perform some of his duties. In BT v Ticehurst and Thompson [1992] IRLR 219, the Court said the employer could send workers home without pay when they refused to sign a statement agreeing to carry out their full duties when industrial action was still ongoing. 




Pay deductions because of industrial action are not unlawful deductions from wages (section 16, ERA 96) (see Chapter 4: Deductions and underpayments). However, a tribunal can make a finding of fact as to whether industrial action took place rather than just relying on an employer’s assertion (Gill v Ford Motor Co & others [2004] IRLR 840).