We’re Miles Apart: Disproportionate Deductions From Wages and Industrial Action – by David Mead

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This blog post has been produced in support of the ongoing UCU industrial action. The UKLLB expresses solidarity with the ongoing strikes and ASOS.

1. INTRODUCTION

This blog is taking written shape on the first day on which members of the academic’s union, the UCU (University and College Union) are taking part in a series of strikes aimed at seeking resolution of its twin disputes: falling pay, the gender and ethnic pay gap, precarious employment practices, and unsafe workloads, alongside taking action to protect members’ guaranteed pension. Many institutions have responded (see below) with emails to staff informing them of the possible penalties that those who take action – and especially those who follow up with a work-to0rule – can expect to be imposed.

In the interests of transparency, it seems only fair to disclose my own membership of the UCU but I will not be taking industrial action as my own branch did not meet the 50% ballot threshold. There is thus a personal flavour as well as a wider academic discursive purpose to this blog: to challenge the idea that an employer can, for example, continue to dock pay for classes that are not rescheduled after a strike, by locating the analysis within an Article 11 framework, something rarely before conceived.

In order to make good its suggested claim – those current provisions of domestic law that allow employers to make such deductions constitute a disproportionate interference with the Article 11 right to associate – this blog will need to show:

1. That the right to strike is an individual not a union right;
2. That deductions from pay that do not represent lost hours constitute both an interference with the exercise of that right and a disproportionate one; and
3. That the right not to be subject to disproportionate wage deductions, as an aspect of the protective scope of Article 11, can be enforced against employers.

It is this latter element that is the focus of this blog, though we will traverse the other elements first. I think there are various strands:

1. If the employer is a public sector employer, such as a university, they are bound by s.6 of the HRA not to act in violation of an employee’s Convention rights (though this raises the question of what counts as a ‘private act’ for the purposes of s.6(5);
2. If the employer is a private company, we need to consider whether a duty of rights-obedience can and should be read into the contract of employment; and
3. In the case of both, there is a possibility post-Mercer of deductions constituting a “detriment” under s.146 TULRCA.

Its focus is on the human rights elements – Article 11, proportionality, s.6 of the HRA – rather than on the contractual position which, admittedly, would need some thrashing out if the arguments arrayed here proved successful.

2. HOW ARE UNIVERSITY EMPLOYERS RESPONDING?

A few universities have responded to the proposed UCU action in the coming weeks by emailing staff to let them know that they plan to impose punitive sanctions on those who strike and/or who take action short of strike (“ASOS”). The Times Higher reports that six institutions are saying they will deduct 100% of pay for those who do not reschedule classes cancelled as a result of a strike day lost: Bristol, Bradford, Manchester Metropolitan, Newcastle, City  University of London, and Queen Mary University of London; and several more are planning to deduct between 25% and 50%. Cambridge had originally planned to but pressure from both staff and students led it to rethink. Many will in this round, and in the past have – Liverpool being one – deduct 100% of pay for every day of ASOS in the form of an assessment boycott. Birmingham is threatening to deduct 50% for ASOS and is reserving the right to withhold 100% if, amongst other things, it impacts on student education or experience, such as but not limited to marking boycotts. In the past, others have adopted other measures. My own university, UEA, in the 2014 dispute deducted a full day’s pay for days on which there were only two-hour part-day strikes.

The focus of this blog is on Article 11 and questions of proportionality. Before embarking on that, just a few words on another possible claim. There is also a strong possibility that, for those six institutions above that are also threatening continuing wage deductions for every day a class is not rescheduled, might constitute an actionable breach of A1P1, the to right peacefully to enjoy possessions. This because an earned salary is a possession within that Article: Baka v Hungary (2016). The employee here is losing twice for the same action, or harm to the employer if we put it in those terms: they are docked money for the day on which they strike and thereafter are docked salary as well. This too would come down to a question of proportionality, at the heart of A1P1 as it is for Article 11: Sporrong and Lönnroth v Sweden (1982, at [69]), or as the Grand Chamber put it in Broniowski v Poland in 2004 (at [150]) the test is whether or not “the person concerned had to bear a disproportionate and excessive burden.” Having raised that possibility, let us now turn to the main focus of this post, an evaluation of the proportionality, in Article 11 terms, of certain deductions from pay following industrial action.

3. THE CURRENT LAW

Many readers will probably be very familiar with the principles. At common law, readiness and willingness to work is a condition of the employment contract, performance of which entitles the employee to be paid. Since striking evidences neither – at least not willingness – an employer is entitled to withhold pay. This at a general level is clear from the House of Lords decision in Miles v Wakefield in 1987, deciding that whether A is paid an hourly/daily wage or weekly salary for a pre-defined 37-hour week, the result was the same: a striking worker has no entitlement to be paid for the time they were on strike. More recently, in 2017, the Supreme Court in Hartley v King Edward VI College aligned hourly wage earners, weekly salary earners and professional employees, such as in the instant case teachers, paid a yearly salary in exchange for an open-ended duty to serve. This blog is not challenging that basic right of an employer, to deduct a day’s pay for a day-long strike.

Where an employee takes ASOS, by working to rule or by undertaking only certain duties and not others, again case law provides the answer. Per Miles v Wakefield, employers are entitled to deduct wages. Mr Miles was a Registrar of Births Deaths and Marriages. The House of Lords accepted that his employer, the local council, could deduct the full three hours’ salary even though he was present at work for the whole of that time, as he had made clear his refusal to perform marriages during his three-hour Saturday morning shift. He undertook other tasks in the office instead. It was lawful to pay him 34/37 of his salary for the duration of the dispute. In Wiluszynski v Tower Hamlets, a local government official refused to respond to queries from the public for the duration of industrial action. Clearing the backlog once it was over only took a few hours, yet the Court of Appeal held that it was lawful for the employer council to withhold payment in full for the duration of the dispute. An employer is lawfully able to take the view that they will not accept partial performance and thus lawfully able to reject any performance that is not entirely in accordance with the contractual terms. Failure to perform the contract in full exposes the employee to total non-payment, at the absolute discretion of the employer. The only constraint is that the employer must make clear in advance their intentions. In the university context, this holds true. A university is entitled to deduct (in the instant case) 30% of salary for a university lecturer who undertook an assessment boycott as part of a NATFHE dispute in the summer of 2005: Spackman v London Metropolitan University (2007, in the County Court). Ms Spackman’s employment contract included a clause expressly stating that the university would not accept partial performance and that her entitlement to remuneration would cease if she did not perform her full duties. The university wrote to all staff prior to the industrial action informing them that if they took part, they would suffer deductions from wages as the university would not accept partial performance.

We will not focus on full day strikes leading to deduction of a full day’s pay. Instead, our concern is with either part-day strikes still leading to deduction of a full day’s pay, or with ASOS that involves a breach but where the pay deducted cannot be seen as commensurate with any harm or loss the employer can have suffered. The argument in brief is that this constitutes a disproportionate restriction on the exercise of an employee’s right to strike and to take industrial action, as an aspect of the guarantee in Article 11 of the right to associate. Doing so requires consideration of how those statutory Convention rights interact with existing common law contractual rules and principles. The blog also addresses an alternative route to ensure no more than proportionate pay can be deducted: conceptualising the deduction as a detriment under s.146 TULRCA. At first Mercer would appear to speak against such an outcome but closer inspection might reveal a route. First though, we need to establish the protective scope of Article 11.

4. THE ARTICLE 11 RIGHT TO ASSOCIATE

Again, much of this will be familiar to UK Labour Law blog readers. At Strasbourg level, there is now a sufficiency of case law from the recognition in Demir and Baykara v Turkey (2008) of the implicit right to bargain collectively, and the consequent instrumentality of withdrawing one’s labour leading, in 2014, to the Court declaring that “strike action is clearly protected by Article 11” (RMT v UK at [84]).

The position in domestic law is less clear cut in that there has not been a positive judicial pronouncement. Instead, as Alan Bogg and Ruth Dukes put it (in their ILJ discussion of 2019’s CWU judgment):

Since the enactment of the Human Rights Act, and the evolving jurisprudence of the ECtHR, UK law may now be described as protecting a right to strike albeit one that is pieced together from a variety of sources: statutes such as TULRCA, the common law, Convention rights, and relevant case law (“Statutory interpretation and the limits of a human rights approach: Royal Mail Group Ltd v Communication Workers Union” (2020) 49 ILJ 477)

The law – from Metrobus through RMT v Serco to Royal Mail v CWU – vacillates between being ‘almost but not quite a positive right’ to simply being the absence of liability, that is the aggregation of the various immunities. For our purposes, I do not think it matters whether the court view interferences with a union’s ability to call a strike as an interference with the right to strike or an interference with the right to associate, an integral element of which is being able to call workers out on strike. All those cases show that the court conducts proportionality analysis of the procedural requirements imposed on unions, usually relating to holding a ballot, and contained in primary legislation.

What is more critical to the analysis is to conceptualise the ‘right to strike’ (if such it be, and it certainly is at ECHR level) as one conferred on and exigible by an individual. Again, European human rights law conceives both unions and individuals as beneficiaries of the right – the Court had no difficulty in 2018 in Ognevenko v Russia (at [62], and discussed by Tonia Novitz on these pages here) in deciding that the disciplining and dismissal of a train driver for participating in a strike called by his union constituted an interference with his right that needed justifying under Art 11(2). It must also be the implication of Mercer (to which we shall return) last year, in which a transformative s.3 HRA reading was taken to s.146 in order to protect an employee who had taken industrial action. Again, it might not matter for our argument here. Even if the right is seen only as one for the union, disciplinary action against members A, B and C – whether realised or ‘merely’ threatened – weakens its position as collective guarantor of workplace protection, whether in terms of improved wages or greater safety on the factory floor. To that extent, action against A, B and C is action against all and against the union.

While there is no case on point, it is hard to see a court not reaching the conclusion that a deduction from pay for member A after a strike day or following/during ASOS – i.e. the issues that faced the courts in Miles and Wiluszynski before the HRA,  and followed since in Hartley and Spackman – constituted an interference with the right in Article 11 that required justification on the usual proportionality basis under Art 11(2). It should be noted that the County Court judge in Spackman (Recorder Jan Luba QC) specifically addressed proportionality and said this:

It would be fair to assert that the case for proportionality as a limiter to the contractual provisions had not properly been presented to the court. We shall see how they could have been, and it is to that that we now turn.

5. HOW MIGHT AN EMPLOYEE MAKE GOOD THEIR CLAIM?

This is in two parts. The first distinguishes public from private sector employees. University academics and academic-related UCU members obviously fall within the first but in general, it would be useful to see how the law does and could treat all. The second is of general application and, to repeat a point made above, involves a look at s.146 TULRCA and last year’s EAT decision in Mercer.

a. Public sector employees

The resolution of this might appear straightforward. Under s.6 of the HRA, public authorities are under a duty of ‘Convention compliance’. Convention rights – including Art 11 rights – can be enforced directly against them as they are bound directly. This is why we have seen an expansion of judicial review; government decisions are now susceptible to challenge on human rights grounds, and thus, in many instances, to challenge on proportionality grounds.

That though only holds good, or might only hold good, for employees of core public authorities. There is no list but we can derive an idea from Lord Nicholls in Aston Cantlow. Few will meet the criteria for “core” indicia: possessing special powers, democratic accountability, public funding, obligation to act only in the public interest, and a statutory constitution. A generally agreed short list would be: central government, local government, police and the army. This matters because accepted authority is that core authorities have no private side; all their acts and decisions are public, and this would include even potentially private activities as employing staff, and employment relations generally.

For those employed by other ostensibly public sector bodies – in HRA language, hybrid authorities – the question is then this: is my employment, or more specifically, is the particular decision in respect of my employment that I am aggrieved by conceived as a ‘private’ or ‘public’ act within s.6(5)? Only the latter are caught. Here there is disagreement. The confines of this blog allow only a sketching. On the one hand, proponents of the notion that employment decisions are ‘private’ would point to a pre-HRA judicial review decision like East Berkshire in the Court of Appeal, and the holding there that an NHS nurse could not challenge his dismissal (which he argued was in breach of natural justice and of the relevant Whitley Council collective agreement) by means of (what was) Ord 53, i.e. by judicial review. As Sir John Donaldson MR put it, “employment by a public authority does not per se inject any element of public law”.

Against that would be the idea that the HRA was not designed fully to reflect the common law, such that departures from pre-1998 case law were expected. The common law test for determining amenability to the supervisory jurisdiction under Ord 53 is not necessarily the same as that set out in s.6(3). However, taking that line is problematic in light of the fact that the East Berkshire position was given a new lease of life at the outset of the HRA in 2003 in Owen v National Maritime Museum Tribunal. Dawn Oliver’s analysis in various papers from the early days of the HRA would also give succour to proponents of it being viewed as a ‘private’ act – the liberal principle that we need to confine the state as narrowly as possible so as to free up and give room to manoeuvre to as many entities as possible. Putting her position a slightly different way, the signifiers of a body being ‘public’ is the possession of unique powers: if a private individual like me can perform act X, it cannot be public. Since I can employ people – to clean, to drive me etc – the act of employment is per se private irrespective of whether a university or a hospital or the BBC is the employer. But, while we might naturally see employment as being private, a different view might be obtained if instead we framed the issue as one asking, “Why is a university employing people?” To perform its various public tasks – educating students paid for from the public purse – and so closely enmeshed is employment in that, that we might consider it to be a public act. That approach is very much in accord with that of the Court of Appeal in Weaver. There, termination of a tenancy – an act we can all perform – by a social housing trust was held to have a sufficient element of ‘publicness’ as to render the trust’s decision subject to human rights norms. Taking such an enlarged view of what constitutes a “public authority” when it comes to employment law decisions is consonant with the argument put forward by Gillian Morris in the very early days of the HRA, in 1998 in the ILJ (“The Human Rights Act and the Public/Private Divide in Employment Law”) and is, in turn, she argued in line with Strasbourg jurisprudence.

There does not appear to be a reported case either way determining whether or not a university employee has human rights as against the university. The closest is Ben Dor v Southampton but the specifics there are key: a claim by an academic that his own university’s decision to revoke permission for an academic conference (on Israel) constituted an interference with his free speech. Even then, it is not entirely clear if the case was decided on grounds of common law free speech following, say, Simms and O’Brien. There are though cases of other public sector employees – NHS staff or teachers – successfully laying claim to the protection of a Convention right, or at least it not being decided that the hospital owed no s.6 duties, in stark contrast to East Berkshire. One such would be Mattu, a 2012 Court of Appeal case about the Art 6 compliance of internal disciplinary processes. Another would be Kulkarni in the Court of Appeal in 2009, similarly about disciplinary processes but where the issue was a right to legal representation. A third would be the Supreme Court decision in R (oao G) v Governors of X School, in 2011. The easier route to resolution in all of those disputes would have been to hold that employer X is a public authority but its employment decisions were private acts so there is nothing on which the s.6 duty can bite; but that wasn’t how they were disposed of.

In short, it is quite possible but by no means certain that a university academic who suffered a disproportionate deduction of pay in circumstances outlined above might have their own direct HRA claim for breach of Article 11. If not, their route in would be the same as for private sector employees, which is what we turn to now

b. Private sector employees

The route proposed here is founded on the contractual relationship between employer and employee but – since these do not exist in vacuo and/or might need the intervention of a court to give meaning and effect – also rely on the position of the court or tribunal as a public authority under s.6, the indirect horizontal effect.

At doctrinal level, the labour law position is clear. There is no authority that holds that an implied term of the employment contract is what we might term “rights-obedience”, obliging an employer as a matter of contract to act in compliance – and in Article 11 terms, that means proportionately – with their employees’ Convention rights. Equally, there is no decision holding it not to be a term: Smith v Carillion in the EAT (2014) might seem to be on point, but it was concerned with the question of the coming into existence of a contract, and whether the HRA would/should make any difference to the common law, not the construction of an extant contract. The matter appears surprisingly undecided. If an employee were dismissed (or subjected to another aspect of managerial decision-making that is subject to statutory regulation or attenuation) then s.3 would require – or at the very least strongly suggest – that the exercise of that power is to be read subject to the employee’s Convention rights. That is the territory of X v Y, but is not what we are considering here, deductions from pay pursuant to common law.

There is now a strong strand of support in the academic literature for the view that courts should view the contract as including an employee’s Convention rights, dating back to a prescient 2001 piece by Gillian Morris in the ILJ (“Fundamental rights: exclusion by agreement?”). More recently, Joe Atkinson provided a convincing normative case in the ILJ in 2019, either as a free-standing implied term or itself implied into the implied term of trust and confidence. I do not think for our purposes it matters which of the various suggested routes is alighted upon. The authors of Chitty on Contract, in the most recent 34^th edition, dedicate several pages to the discussion and certainly do not rule out the possibility, even if they do note it is hedged with concerns. There is some case law support albeit rather elliptical. Kulkarni v Milton Keynes NHS Trust, in the Court of Appeal in 2009, involved the construction of a contractual term set out in the Trust’s disciplinary policy:

The Court decided (at [59]) as a matter of ordinary construction that the highlighted part was devoid of meaning. The paragraph meant that a medical practitioner could be represented by a legally qualified person, employed or retained by a defence organisation. ‘Retained by’ must include ‘instructed by’. However, a doctor was not permitted to bring a legally-qualified person whom he had instructed or retained independently. The Court did go on to consider, obiter, the position if a doctor were not a member of a defence organisation, and thus precluded under the contract from being legally represented. The Court considered this would have constituted a breach of Article 6 despite the clarity of the contractual position on that point. Outside the labour context, the Court of Appeal in Stretford v FA (2007) was asked to interpret an arbitration clause (rule k of the FA Rules) incorporated into the contract between S and the FA, under which both parties waived their right to a hearing before the courts and to a public hearing, in line with the requirements of Article 6. An analysis of ECHR cases indicated that the proposed arbitration held under the contract was not incompatible with S’s rights. Further back in time, Al-Kishtani v Shansal (again before the Court of Appeal in 2001) was a contractual claim by S for repayment of monies owed by A. A pleaded the defence of illegality, S’s own breach of UK rules proscribing any trading with Iraqi citizens. S’s argument that such a defence, if successful, would defeat his own rights under A1P1 – the right to peaceful enjoyment of possessions – did not succeed. The Court held that illegality fell within the public interest exemption in A1P1. In short, there is some support in private law doctrine for contractual rights and obligations to be read subject to human rights obligations contained in the ECHR.

The final piece of the puzzle requires us to consider the role of the court. Our imaginary scenario is that an employee has undertaken ASOS for a month and her employer has deducted full pay or a large proportion of pay for the whole period, even though the work she did not perform represents a small % of her monthly usual tasks. She brings a claim for repayment of monies owed on the basis that the deduction represented a disproportionate interference with their Article 11 rights, as a breach of her contractual right for her employer to respect mutual trust and confidence and/or calls upon the court to interpret her contract as including a free-standing term of “rights-obedience” (and perhaps seeks a declaration that so acting was unlawful).

This by now, in human rights terms, is fairly orthodox. Courts are expressly classified as public authorities in s.6(3)(a), and thus subject to the duty in s.6(1) not to act in a way that is incompatible with a Convention right. In practice, this means that a court, when presented with a case for adjudication, must resolve it in a way (that is, reach a decision) that does not disproportionately breach the rights of either party, if a qualified right such as Article 11 is before the court. This is how, as one example, the courts have developed what is in effect a right of privacy, against media intrusion – the right not to have private information misused – through interpretation of equitable rules relating to breach of confidence, Naomi Campbell’s case being the best and first example (in 2004). The duty is different to the s.3 duty on courts to interpret legislation. Section 6 case law shows quite clearly that courts and judges have taken on it on themselves to revisit (some) private law doctrinal rules and to mould them into a more Convention compatible shape, or at least reached a view that though relevant, it was not necessary as the common law and ECHR marched in time: Fearn v Tate Gallery Board of Trustees.

In our situation, the employee would be asking the court – as a public authority – to look again at cases such as Miles, Wiluszynski and Spackman, and to hold that a rule that permits an employer to deduct the entirety of a week’s or month’s wages ‘simply’ by communicating that they will not accept partial performance does not properly protect an employee’s right to take industrial action, and asking it to recast the rule as permitting only a proportionate deduction, one that reflects the ‘true’ loss through withholding that part of labour. In many, this would be likely to bring deductions down to negligible levels – it may have been performed by AN Other, other work may have been undertaken in its stead which will have been of value, to think of just two constraints.

In support of that more revivifying judicial approach, we might consider two more pieces of normative mood music. First, is the need following Braganza in the Supreme Court for courts to imply rationality into the operation of contract terms. While rationality – Wednesbury unreasonableness to public lawyers – is a lesser duty than the balancing required by looking through the lens of proportionality, it does represent a sea change in judicial thinking. We might, on similar lines and secondly, pray in aid the more purposive approach in, say, Uber and Kostal, evincing a more protective reading of employment contracts so as to achieve parity of bargaining (or at least one where courts recognise disparities in bargaining) or where not doing so would defeat the statutory purpose of effecting union recognition and the right to engage in collective bargaining.

All of this strongly suggests that a court could – and I would argue should – mollify the current harshness of the common law so as properly to give effect to a striking employee’s Convention rights. Rejecting the absolutism of Wiluszynski would allow courts to introduce a more evaluative test for deducting pay, one that is more responsive to all the competing concerns and interests at stake, not simply the managerial.

6. SECTION 146 DETRIMENTS

This offers a more satisfactory resolution for all employees, and involves coming at the problem from a different angle. The principle established by the EAT in Mercer is that subjecting a worker to a detriment for participating in industrial action can come within the protection of s.146 TULRCA, as a trade union activity. This is not the place to unpick or evaluate the decision – see on these pages by Bruce Robin – but simply to make a few observations.  In endeavouring to persuade it not to utilise s.3 HRA to “read” s.146 in a way that accommodated industrial action, it was pressed upon the EAT by counsel for the company that doing so might open the door for employees to make wage claims following strikes. The EAT closed that down:

The suggestion that the exclusion of industrial action from s.146 is due to the need to avoid imposing an obligation on employers to pay workers who go on strike, seems to me to be one without real substance (at [61]).

An employee who suffered a deduction of a day’s pay for a day’s strike would not find in s.146 any protection. Such a claim would offer no recourse as it would fall at the first hurdle. The legislative objective of relieving employers of the need to pay workers who, by participating in industrial action, withhold their labour in breach of contract was sufficiently important to justify the limitation of that fundamental right. An employee who does no work because she is on strike cannot expect to be paid. However, what was left unresolved in Mercer are the two matters at the heart of this blog. The judgment tells us (and whether this stands as an aspect of the ratio I think is moot) that a deduction from pay following a strike will not be seen as subjecting a worker to a detriment. It is very clear the focus of Choudhury J is on what we might term “ordinary” deductions. It is worth setting out the relevant passage in full:

The accepted position of the ILO appears, therefore, to be that deductions for the days of the strike are unobjectionable but additional deductions going beyond that are. I was not taken to any ECtHR authority suggesting otherwise. The position under domestic law was of course made clear in Sim v Rotherham MDC [1986] ICR 897 per Scott J at 942H-G and Miles v Wakefield MDC [1987] ICR 368 per Lord Bridge at 382C-E: a worker has no entitlement to pay in respect of strike action. Given these matters, a worker could not legitimately claim to have a justified sense of grievance in not being paid for the time spent on strike action and so would not be able to assert any detriment at all. The worker who sought redress for deductions of pay by invoking Article 11 would find no support in any ECtHR authority on the point, or from the ILO, the international body whose Conventions inform the approach taken by the ECtHR to Article 11. In these circumstances, the suggestion that the exclusion of industrial action from s.146 is due to the need to avoid imposing an obligation on employers to pay workers who go on strike, seems to me to be one without real substance.

First, nothing in that passage provides insight into ASOS, action short of strike. It is about deductions for strike action. Secondly, it is instructive that there is mention of Sims and Miles, but not Wiluszynski. It does not tell us whether or not we might construe a 100% deduction for failure to perform the contract in its entirety as a detriment – and to recall, in Wiluszynski, this a failure to perform tasks that took only a few hours to deal with once the dispute ended. Thirdly, Mercer leaves us no better informed about full-day deductions for part-day strikes, which again are demonstrably disproportionate.

In fact, rather than silence on those issues, I think there is something in the decision that points in the opposite direction, offering us a foothold. The reason the Tribunal felt able to decide as it did, that disciplining a striker would be a detriment, was because of its sureness that deducting pay would not. The policy argument put forward by counsel for the company was that Parliament must have intended that all detrimental consequences of industrial action were to be excluded from the protective reach of s.146 as that was the only way to ensure that deductions from pay could not be recouped. The Tribunal’s solution (see passage above) was to distinguish disciplinary etc detriments from pay deductions, with only the latter outwith s.146.

What is critical is the route. Here we need to read the reasoning almost in reverse. The Tribunal was able to read s.146 as encompassing only disciplinary etc detriments, following industrial action because in its view a detriment by way of pay deduction would satisfy the hurdle of Art 11(2). Such a deduction would constitute a necessary and proportionate interference, using the four-staged analytical framework in Bank Mellat No2 (at [20]). Pausing momentarily, it is true that the Tribunal did not go through all four of the Bank Mellat questions as that was not necessary for disposal, so the conclusion that is about to come is a slight leap. What is critical though is the finding that deductions from pay serve a necessary and sufficiently important policy objective – removing the requirement of employers to pay employees when they do no work because of a strike. Implicit in that is that where there is no rational connection (the next Bank Mellat question) between the interference – the harm suffered (i.e. the deduction) – and the necessity of the business case for so doing then it will be disproportionate to deduct wages. Similarly, it would be disproportionate to deduct wages if there is a rational connection but other less intrusive measures could have been adopted (Bank Mellat question 3) or it is outweighed by greater competing public policy concerns (the effect of question 4).

From here, it is, I would suggest, a fairly small step to the conclusion that an employer who deducts full salary for a two-hour strike has acted disproportionately. The whole thrust of the case is a quite legitimate concern about requiring employers to pay workers in full despite their being totally non-productive through striking. It does not follow from that that all deductions from pay following either a strike or ASOS should be treated the same way. Indeed, in some ways our scenarios are the reverse. A lecturer is productive for five out of seven hours a day, and on strike for only two or is working at 85-90% productivity where they are doing everything else save rescheduling classes. While a full day’s deduction for a full day strike cannot be seen post Mercer as a detriment, there is no reason to treat the docking of a whole day’s pay for a partial day strike as anything but a detriment within s.146. Similarly, deducting full pay for ASOS – the position in Wiluszynski – falls the same way, as too would an employer deducting from pay a sum that exceeds the value to her of the work lost: this is of course notoriously difficult to quantify but could fairly reasonably be assessed by working out how long it took to make good the lost work, or by how long previously it had taken or (as may be the case in universities) what time was accorded in any workload model (say, 20 minutes per exam paper). Without wanting to offer anything like a hard and fast rule, it is hard to think of a situation where an employer could deduct more than a notional amount – either in pounds or as a percentage of salary – and successfully defend that as proportionate. Even if we think of an assessment boycott, an employee is only not productive for say three maybe four days in the working month, and at all other times performs her duties. To deduct a whole month’s salary, maybe two if the action persists, for what is a failure to work for a couple or handful of days maximum is grossly disproportionate.

7. CONCLUSIONS

There is obvious and immediate hardship in a common law rule that allows an employer not only to deduct pay for every day an employee is on strike but also to subject striking employees, and those who take other industrial action, to excessive deductions. Deductions that bear no relationship to the harm caused, the real loss of work suffered by the employer, constitute an obvious impediment to the effective realisation of the right to associate – rendering it far harder for workers to come together and utilise their collective strength for their greater and better good, and to offer resistance to managerial demands.

That must be so even – and maybe this was not clear in the discussion above – if the deduction is not effected, merely threatened in the build-up. Many might have been chilled and dissuaded. There is certainly Strasbourg jurisprudence on the right to peaceful assembly (so not entirely on all fours factually) that could support claims that the threat of an unlawful deduction (as well as or instead of the actual deduction) might also constitute a violation. In Bączkowski v Poland, the Court was asked to consider the case where a rally did go ahead but had not been unauthorised and thus banned (albeit the bans were overturned after the event). It said this (at [67]):

The applicants took a risk in holding them given the official ban in force at that time. The assemblies were held without a presumption of legality, such a presumption constituting a vital aspect of effective and unhindered exercise of freedom of assembly and freedom of expression. The Court observes that the refusals to give authorisation could have had a chilling effect on the applicants and other participants in the assemblies. It could also have discouraged other persons from participating in the assemblies on the grounds that they did not have official authorisation and that, therefore, no official protection against possible hostile counter‑demonstrators would be ensured by the authorities.

This blog has offered various routes by which employees who facing threats of or actual deductions might be able to mount a challenge, primarily using the requirement that interferences with the exercise of the right to associate must be proportionate. Public sector employees might be able to argue the direct application of that right, and private sector employees would be able to rely on a remoulding of hitherto well-established contractual rules along lines more accommodating to the protection of an employee’s human rights. Alternatively, employees might have scope for bringing an ET claim under s.146(5) for having suffered a detriment on grounds relating to trade union activities or membership.

There are I think matters that remain to be explored, and which this blog has not or has barely covered. We have not really touched on the granular mechanics of revisiting the common law, and perhaps most obviously how far that planned revisiting can and should be insulated sui generis – or do we risk unforeseen knock-on effects on commercial law more widely if we tamper with the rules on partial failure of performance, and set-off? Here we might simply note the words of the current authors of Deakin and Morris’ Labour Law, themselves observing that perhaps it is the employment cases that are the heterodoxy (7^th ed, at p.302)

It is not clear that the decisions in Miles and Wiluszynski can readily be justified by contract law doctrine, however. It is odd that an employer can apparently suspend the operation of payment while the other aspects of the contract remain in force…The issue is whether the employer should go on receiving the substantial benefit of performance in return for nothing, simply by virtue of a unilateral declaration to the effect that it was not ‘accepting’ part performance.

Neither have we considered the effect of express terms, which quite clearly cannot be overridden by implied rights-obedience terms. Gillian Morris in her 2001 article considers this question, and whether an employee can and should ever be able to waive the protection of their rights at work, and if so, what would be needed to evince that. The problem may in reality be contained in the situation of deductions following a strike. If the express term is simply reserving the right not to accept partial performance for the whole, that is very different to an express term reserving the right to deduct a nominate disproportionate sum – but such latter event is unlikely. There are also likely to be concerned about utilising Convention rights to alter existing contractually agreed private law relationships. On the one hand, these could be met by observing that this is “all” that happened in WM Woods or in Malik; employers and employees must always contract in the knowledge that a court might later interpret the contract differently. It is also not novel. There is existing warrant for such an approach. In Ghaidan, admittedly under the guise of interpreting the Rent Act 1977 using s.3 of the HRA, the courts imposed on a landlord an entirely different set of obligations – furnishing the surviving same-sex partner with an assured shorthold – to those that he (and the then tenant) agreed to with open eyes in 1983. Last, with at least one of the examples – deducting a full day’s pay for a part-day strike – we would need to address rules on accrual and apportionment under the 1870 Act, and no doubt the position on quantum meruit, something specifically rejected in Spackman. All that said, this blog has I hope offered food for thought and perhaps some ammunition for battles ahead.

(Suggested citation: David Mead ‘We’re Miles Apart: Disproportionate Deductions From Wages and Industrial Action’, UK Labour Law Blog, 16 February 2022, available at https://uklabourlawblog.com)