Introduction
- his is a claim brought by an employee against her employer arising from non-payment of part of her salary. Normally such a claim would be made under the statutory jurisdiction of an Employment Tribunal. But it is agreed that access to that Tribunal is not available in this case because the factor which triggered the deduction by the employer was the taking of industrial action by the employee.
- Moreover, pursuant to earlier case management directions, this claim is being treated by both parties as a "test" case. It is but one of a series of claims seeking repayments of deductions made from the salaries of many of the Defendant's employees as a result of industrial action taken during May to July 2005 by academic staff who were members of the trades union "NATFHE".
The Facts
- The Defendant ["the University"] is a substantial learning institution based in London with over 1000 academic staff. It was formed in 2002 on the merger of the University of North London (formerly North London Polytechnic) with the London Guildhall University ["LGU"].
- In May 2005 the University was scheduled for an important three/four-day visit by the Quality Assurance Agency ["QAA"] as part of a periodic academic audit exercise. That was also the time of year during which students - including "final year" students - would be undertaking examinations and assessment. As the Claimant acknowledged in evidence, May - June 2005 "was a crucial time" for the University and its students.
- Sadly, there had been disagreements between the University and the trades union NATFHE ["the Union"] (which represented the interests of the academic staff) over the contractual terms on which staff of the merged institutions would be employed, particularly ex-LGU staff. For whatever reason, it did not prove possible to reach a negotiated settlement of those disagreements. On 22 April 2005 - following a ballot of members - the Union gave the requisite statutory written notice that it was calling upon its members in the University's academic staff to take industrial action. As to the specifics of that action, the letter read:
"The industrial action will take the following forms:
Continuous industrial action will commence on Tuesday 3 May 2005 and will comprise the following:
a. Boycott of QAA activities
b. Boycott of all University quality assurance procedures and processes, including course and module/unit monitoring
c. Boycott of Appraisal
d. Boycott of PADAS.
e. Boycott of new University student mitigating circumstances procedures
f Boycott of new University module student feedback procedures
Further continuous industrial action will commence on Monday 9 May 2005, comprising of:
g. Withdrawal from exam invigilation
h. An assessment boycott"
As is obvious, the timing of - and the nature of - the industrial action that this communication notified were designed to put considerable pressure on the University to agree to the Union's terms. In particular, the instructions not to assess student work or invigilate at exams were (as the Claimant acknowledged in her evidence) calculated to apply pressure with the aim of getting management to further yield to the Union's position. As long as this form of industrial action endured, the examination process would be disrupted for want of invigilation and, in the absence of assessment, the results for students (including "final" students) could not be produced.
- Among the Union's members in 2005 - to whom the call to industrial action was directed - was the present Claimant, Ms Helen Spackman ['Ms Spackman']. She had been employed since 1 September 1999 as a full-time Lecturer in the Performing Arts, subsequently becoming Senior Lecturer in Performing Arts and Theatre Studies at the University. From April 2005 to January 2007 she was additionally asked by her Head of Department to serve as Personal Academic Adviser ["PAA"] which role involved her in working on the academic progress of some 200 students across the Department. Her contract of employment provided, inter alia:
"3.1... The nature of any particular academic job will comprise different elements at different times..."
3.8... .[Staff] will therefore make themselves available to carry out specified duties and responsibilities, with appropriate notice, throughout the agreed working day, week and year.
4.2 This is a full time post and its nature is such that you are expected to work such hours as are reasonably necessary in order to fulfil your duties and responsibilities 4.3... You are expected to work flexibly and efficiently, and to maintain the highest professional standards in discharging your responsibilities, and in promoting and implementing the corporate policies of the University.
24 Industrial Action
24.1 Any industrial action should only be used as a last resort and in this respect the University and Natfhe have committed to a protocol for the resolution of legitimate disputes. This protocol states that you will not take any action or cause any action to be taken, that will disrupt the student teaching, learning and assessment programmes, recruitment, enrolment, validation and approval of programmes, quality assurance and graduation processes until it is agreed by both the University and the designated Natfhe full-time officers that these processes have been exhausted. If you fail to comply with this part of the contract, you will automatically be subject to the application of the University's disciplinary procedures.
24.2 It is the University's policy to wholly reject partial performance and should you take any action which the University deems to constitute partial performance (whether this in accordance with official or unofficial action), your entitlement to remuneration will cease"
- In response to receipt of the Union's notice of industrial action, the University's Director of Human Resources (Ms Lyn Link) wrote to the relevant staff by an Email dated 5 May 2005 in the following terms:
"THIS MESSAGE IS INTENDED FOR MEMBERS OF STAFF WHO INTEND TO TAKE INDUSTRIAL ACTION IN ACCORDANCE WITH NATFHE'S MANDATE
Dear Colleague,
NATFHE has advised the University that it intends to instigate continuous industrial action with effect from Tuesday 3 May, with further actions commencing on Monday 9 May 2005.
If members of staff participate in these forms of continuous industrial action ... they will be in breach of their employment contract.
The University's policy is to reject partial performance, with resultant deduction of pay and this e-mail is therefore intended to advise you that the University reserves its right to deduct pay, should you engage in any form of industrial action. Pay will therefore be deducted either when you inform us that you are participating in one or more of the forms of industrial action, in which case you are required to provide full details of your involvement including duration, or when it becomes evident from other information that you have so participated. In both instances, the University will make a judgement as to the extent of any partial performance and this will result in a deduction from your pay.
The University views NATFHE's intended industrial action as wholly reprehensible, particularly in respect of those actions which adversely affect the University's students. Such actions are not conducive to seeking a resolution to the dispute or to restoring good industrial relations. This is very unfortunate, since the University is keen to build on its considerable achievements since merger and to continue to establish a unified employment framework with constructive contribution from the recognised trades unions.
The University very much hopes that you will wish to fulfil all of your contractual obligations and work normally.
Yours faithfully"
- Also on 5 May 2005 the Union notified the University that the extent of the industrial action would escalate over time. In an Email sent to members that evening, the relevant Union official wrote:
"Following the first two stages of action short of strike, NATFHE is calling upon all members at London Metropolitan University to take part in further continuous industrial action to commence on Friday. 13 May 2005 and to comprise the following:
Withdrawal from University committees and other meetings. This action covers all formally scheduled university committee meetings, with the exceptions of full meetings of the Academic Board and meetings of the Board of Governors.
Boycott of open events- including open evenings and weekends. This action covers attendance at all university open days, open— evenings and open weekends Refusal to undertake activities or duties not already agreed as part of Formal Scheduled Teaching.
The employer has been notified of the above action.
An announcement of further action will follow in due course.
The action called to date applies to all NATFHE members at London Met. It has been planned in stages with action escalating over time in order to demonstrate our determination to achieve a resolution to this dispute while giving the management and governors the opportunity to enter negotiations and agree a settlement before the most serious effects of the action are felt."
- The following day the Union gave notice that the industrial action would take the form of a full-blown strike for the five days of 16 - 20 May 2005, before reverting to previously notified forms of action. All paid-up Union members were pledged strike pay. On 10 May 2005 the Union advised members by Email that in relation to the industrial action generally:
"... there is no need for you to tell management whether you are taking part or not".
- On 11 May 2005 the University's Ms Link sent a further Email to all relevant staff. Since counsel for Ms Spackman submitted that this case is about the interpretation of that document, I set out the substance of it in full:
"Further to my e-mail of 5th May 2005, I now write to update you on the issue of the NATFHE dispute. It had been the University's intention to respond to partial performance arising from NATFHE's decision to engage in continuous industrial action by requesting staff to self-identify if they participate in the action, so that an appropriate level of pay can be deducted. It was pointed out that where self-identification did not occur, the University would use other readily available mechanisms to identify participants and deduct pay accordingly. This low key approach was intended to avoid offending the many staff who intended to work normally.
NATFHE has now notified the University of its intention to conduct a week long strike, commencing on 16th May 2005. The University's experience of past NATFHE strike action is that very few members have notified the University that they have taken part in the action. The University views the forthcoming strike action very seriously, as it will coincide with the QAA visit and the first week of examinations for students. In these circumstances, the University has reluctantly decided to advise all academic staff, whether or not they are NATFHE members, that in the absence of a positive statement from each member of staff that they are working normally and not participating in the strike, pay will be deducted. Strike action will result in the deduction of a full day's pay for each day an individual participates in the strike and the deduction will be made in the June payroll. The same approach will also now need to operate, for the same reasons, in respect of the continuous industrial action which commenced on 3rd May 2005. An appropriate deduction from pay will be made in response to partial performance. In the case of non-participation in invigilation and assessment this is likely to be a high percentage pay deduction.
I very much regret having to ask academic colleagues who do not intend to participate in the action to positively assert their continued attendance and normal working, but hope that these colleagues will understand the reasons for so doing. I am enclosing a pro forma for ease of response, which all academic members of staff should complete and return to me by 5.00 p.m. on Monday 1.6th May 2005. In the event of non-response, I will regard this as a declaration of participation in the action, which will result in pay deduction.
I do apologise for any offence that this method of processing pay deductions may cause, but hope that you will understand why it is necessary."
The Email attached a pro-forma "Declaration Form" enabling staff to indicate in a "will/will not" format the days (if any) on which they would be taking part in the strike and the extent to which they would or would not be undertaking the other notified forms of industrial action. The document was headed:
"STAFF WHO CANNOT SATISFY THE UNIVERSITY THAT THEY ARE NOT TAKING INDUSTRIAL ACTION WILL BE REGARDED AS TAKING INDUSTRIAL ACTION AND PAY WILL BE DEDUCTED"
- For her part, Ms Spackman did not complete or return that pro-forma nor such other later pro-formas as were sent to her. She told me, and I accept, that she had not initially seen the 5 May 2005 Email but that she had seen that of 11 May 2005 and thereafter had had repeated invitations to complete the pro-formas. She understood that if she did not respond she would be treated as taking part in the industrial action and acknowledged that it was not perhaps unreasonable for her employer to say "let me know" if she was not taking part. I am satisfied that her non-response was a deliberate omission in the knowledge that its result would be that the University would treat her as a full participant in the Union's notified actions.
- On her own evidence (to which I shall return in more detail in due course), Ms Spackman was engaged in the industrial action in two respects. She supported the strike action for the week 16-20 May 2005. She then took part in the other industrial action for the period 23 May to 30 May 2005 (excluding 24 May) and - following a period of previously agreed holiday - took part again for the period 6 June until 6 July 2005. Although there is an issue between the parties over what precise work she undertook and when, it is not disputed that she presented for work and undertook at least some of her duties (as both Lecturer and PAA) during the periods of non-strike industrial action. Ms Spackman was thereafter on approved leave or study leave from 7 July 2005 until the industrial action was called-off
- On 20 July 2005 the Deputy Vice Chancellor (Academic) notified all staff (in a message most directly addressed to those involved in Internal Examining - which included Ms Spackman) that the Union had suspended the industrial action. He set out by Email detailed arrangements and a timetable for getting the delayed processes of student-assessment and exam-marking undertaken and concluded.
- As foreshadowed by her earlier E-mails in May 2005, Ms Link had during May - July 2005 instituted arrangements for deductions from salary for those staff known to be, or deemed to be, participating in the industrial action. As the relevant staff were all paid monthly in arrears and as deductions were made for different periods (allowing for holidays and the like), a variety of figures were reflected in the salary payments made at the end of June, July and August 2005 (and thereafter) to Ms Spackman and to other staff. No salary was paid at all in respect of periods for which it had been believed that staff had engaged in the strike action and deductions of 80% of salary were made in respect of periods of industrial action short of all-out strike. Ms Link explained to me in her written and oral evidence that a broad brush approach was taken in relation to all staff considered to be participating. With the benefit of advice from a senior academic (crosschecked with two others) about the work of an average or "model" lecturer, the view was taken that staff fully participating in the withdrawal of those functions set out in the Union's various notices would be undertaking only some 20% of the duties they would otherwise be undertaking at that time in the academic year.
- In the immediate lead-up to, and aftermath of, the cessation of the industrial action there were communications between the Union and the University about the propriety and scale of those salary deductions. Although nothing was expressly agreed, in a series of email exchanges in late July 2005, the University indicated that the lowest deduction it would be prepared to consider was 30%. It was explained that the University considered that percentage "wholly reasonable" and as representing "an accurate penalty given the serious level of industrial action engaged in" (Email of 22 July 2005). Further that "the disruption to the work of the university has been significant and our students remain without results. Staff cannot therefore cause such severe disruption without significant financial penalty" (Email of 26 July 2005). For its part the Union had argued for 20% as an appropriate figure
- In the absence of agreement, the University then implemented further salary adjustments (including where necessary restoration of previously deducted amounts) such as to produce the result that in respect of periods of non-strike industrial action from 20 May 2005 to 20 July 2005 (i.e. ignoring the period before the end of the strike), staff experienced an overall 30% reduction in salary. Ms Link's evidence (Witness Statement para 28) was that she had not felt able to reduce the deduction below 30% given: the disruption the action had caused to the work programmes of all staff; the additional costs to the University incurred during that period; the damage to the University's reputation; and the severe disruption caused to students.
- Identifying what precisely this final level of deduction involved in financial terms for each individual staff member was no mean task, particularly as it was to an extent "phased-in". Explaining the process would require a labyrinthine tour of the various salary payment notices in 2005-2006. Happily, towards the end of the trial before me, the combined efforts of the parties and their professional advisers produced agreement that in Ms Spackman's case (in addition to the deduction for strike days which is not subject of any claim for recoupment) the amount representing the salary which she had not been paid was £1156.69.
The Claim
- Ms Spackman accepts that she can have no claim for the days on which she participated in the all-out strike but she seeks full re-imbursement of the 30% deduction she suffered for non-strike days of industrial action i.e. an order for payment of £1156.69. That I will call her "primary" claim. As a fall-back, she claims that any deduction which may be permissible should be assessed having regard to the actual work that she undertook on the days in question and that her actual work on those days was so substantial that the maximum appropriate deduction would be of the order of 5-10%. On that fall-back (which I will call her "secondary" claim) she claims repayment of such sum as reflects only that level of deduction.
- Those two formulations of her case are taken from the way in which the claim was opened to me by Mr Mead, Ms Spackman's counsel.
- As a matter of law, the primary claim is a simple claim for the sums due in full under the agreed contract of employment and unpaid. The Amended Particulars of Claim assert simply (para 12) "The ...deductions amounted to a breach of the Claimant's contract of employment".
- If that fails, the legal basis for the secondary claim is more elusive. The Amended Particulars of Claim plead it in four alternatives, each of which is said to support a claim in contract for repayment of the deducted sums:
(1) an express term that the Claimant would be paid "part of her salary proportionate to the amount of work done during the period ... or alternatively a reasonable fee" (para 17);
(2) an implied term to the same effect (para 17);
(3) that - if any deduction fell to be made on account of the Claimant's own breach of contract - the degree of deduction imposed was disproportionate and only a proportionate deduction should/could have been made (para 19); and
(4) a collateral contract for payment for the work actually done under which the Claimant was entitled to payment "by way of quantum meruit" (para 20)
- The factual support for the secondary claim was asserted to be Ms Spackman's own evidence (canvassed before me) to the effect that she had performed the vast majority of her regular duties save that she did not timeously submit the marks she had scored in respect of her students' examinations or assessments. As originally framed in her Amended Particulars of Claim, it seemed that Ms Spackman was advancing her claim as a true "test case" in that she had fully participated in the various forms of non-strike industrial action called-for by her Union i.e. that she "took part... and... continued to carry out her other duties as normal" (para 7, emphasis added by me). In her written and oral evidence, however, she abandoned that approach - inviting me instead to find (1) that, in some respects, the forms of action identified at paras 5 and 8 above did not apply to her at all (flagged-up in very broad outline by a rider to para 7 of the Amended Particulars of Claim) and (2) that in other respects, notwithstanding the Union's instruction, she had undertaken the best part of the remaining listed activities which should have been the subject of industrial action.
- Most particularly, her evidence was to the effect that she had been undertaking her responsibilities on marking and assessing student work in the usual way so that when the industrial action was called-off she was able to submit that material at the press of a button. That was not only so that assessments would then be completed as soon as the period of industrial action ended but so that she would be free to leave on her preplanned holiday. This marking, she acknowledged, was in breach of the Union's call for industrial action. Likewise, and not least given the clamours of assistance from desperate students affected by the consequences of the industrial action, she was heavily engaged in her pastoral role as PAA and again acknowledged that this was contrary to the Union's instruction. She said that throughout the periods of industrial action, when she had attended for work, she had "continued to work a minimum of 40 hours/week". Her Witness Statement (confirmed and elaborated in oral evidence) gave particulars, the bona fides of which were unchallenged, of what work she had actually done in each week of the non-strike industrial action. That account was corroborated by the unchallenged evidence of Mr Andrew Wright who had been the University's acting Programme Director of Performing Arts at the time. His statement recounts that during the industrial action she was "very busy" with her PAA role and further that she "was performing a full job and carrying out a large number of duties". Her Department Head, Ms Pike, accepted Ms Spackman's account of what she did during the relevant periods albeit that - with over 100 staff and 100 hourly-paid assistants to supervise in the "very chaotic" circumstances induced by the industrial action - she could not herself have known precisely what Ms Spackman was doing.
- This is hardly then the ideal test case (on the facts) for the Union to have selected. Quite plainly, for whatever reasons, Ms Spackman was only to a less than full extent undertaking the complete range of activity (or inactivity) envisaged by its notified industrial action.
- By its Amended Defence, the University rejects all the facets of Ms Spackman's claims. While it accepts (at para 2) that Ms Spackman provided "part-performance of the services which should have been provided" during the relevant period (of non-strike industrial action) it denies any liability at all to pay her for that work or any work (para 9) whether by express or implied term of her contract (para 12) or otherwise. It denies any collateral contract (para 15). Its evidence is consistent with that. For example, Ms Link said in her Witness Statement (para 2) that the University considered that "it was not required to make any payment at all".
- If that all be wrong, and there is any liability to pay for the services Ms Spackman actually provided, it is asserted that she has been paid either "an appropriate salary" (para 12) or an "appropriate sum" (para 15). As Mr Griffith-Jones QC for the University was at pains to emphasise, the University's concern was not with what the academic staff like Ms Spackman were doing in the relevant periods but with what they were not doing: i.e. not invigilating in exams (a task not relevant to Ms Spackman), not submitting marks/assessments, not submitting sample papers to external examiners; not submitting feedback forms with assessments endorsed, and the like. As Ms Link put it (Witness Statement para 8) the industrial action "came at a crucial time in the academic year when the primary work requirement - invigilation and assessment - was included amongst" the withheld activities. The cost to the University and its reputation in the academic community, and the difficulties caused to students and administrators alike was not only to an extent "obvious" but amply set out in the evidence of Mr Robert Aylett and Mr Ray Smith, which evidence I accept However, notwithstanding that, the University makes no claim (by counterclaim or set-off) in respect of any damage it may have suffered by reason of Ms Spackman's conduct. She is, and no doubt will remain, one of its valued academic staff.
The Law
- Given the frequency with which official industrial action by employees takes the form of non-provision of a normal service but falls short of all-out withdrawal of labour (such as strike action), it might be expected that the law in this area would be well settled. However, as demonstrated by the multi-faceted manner in which the claim is advanced (and denied), that is - it seems - not so.
- At the extremes, the position is clear. If an employee refuses to work or to work normally, the employer can turn him or her away and no salary is payable. If the employee attends for work and works normally, full salary is payable. But what if (as here), the employee presents for work, is not turned away, and then performs at least to some significant extent his/her normal service but not the particular service that the employer most needs/wants?
- Some flavour of the difficult legal landscape in relation to that question emerges from the following passages in Harvey on Industrial Relations and Employment Law.
"B [20] By participating in industrial action the worker may disentitle himself from some or all of his pay, but the courts do not tell a consistent story"
and
"B[26] Where the worker tenders partial performance by deliberately performing his contract in a less than proper manner (e.g. a go-slow) then, the consequences apparently depend upon whether the employer can be said to have accepted the tendered performance. If so, the worker is entitled to his (full) wages subject to the employer's right to set off by way of counterclaim any damages suffered by reason of the worker's breach of contract. If not, then the worker has no contractual right to wages, but he may have a claim quantum meruit. There is still a deal of doubt on this point"
- To like effect, the following passage from Chitty on Contracts:
"39-088 The effect of industrial action upon entitlement to remuneration. In Henthorn & Taylor v CEGB the Court of Appeal held that there was a general common law principle that a plaintiff who claims that he is entitled to be paid money under a contract which he alleges the defendant has broken must prove that he was ready and willing to perform the contract; and that this rule meant that an employer sued for wages could plead that employees who had been "working to rule" had not been ready and willing to perform their part of the contract, without thereby assuming the burden of so proving. This doctrine not only serves to explain why an employee is not entitled to remuneration while striking, but also suggests that an employee may readily be found to have disentitled himself from remuneration not only by taking part in a "go-slow" or a "work-to-rule" but also by associating himself with threats of future industrial action.... It is arguable that the common law doctrine in question, when properly understood, should disable the employee from claiming to be "ready and willing" only when his conduct amounts to a repudiation of his contract or a breach going to the root of it. Several recent decisions have confirmed the existence of this common law doctrine and its applicability to industrial action. These cases show that if the industrial action consists of a partial or conditional refusal to perform the employee's contractual duties, and if the employer accepts the partial or conditional performance offered by the employee, then the employee is entitled to the appropriate proportion of his ordinary remuneration. It is not yet clear whether and in what circumstances that proportion is arrived at by, on the one hand, applying the principle of equitable set-off or, on the other hand, calculating remuneration due on a quantum meruit basis. If the employer makes it quite clear that a partial or conditional performance of contractual duties is not acceptable as substantial performance of those duties, then that partial or conditional performance does not entitle the employee to any remuneration; it is as if there has been no performance."
- It falls to me to identify and apply that law as best I can with the assistance of the authorities and the submissions made to me.
Applying the Law to the Facts
(1) Payment of Full Salary ("the Primary Claim")
- At first blush, the primary claim - for payment of a full salary - is startling. Ms Spackman has made no secret of her support for her Union's call for industrial action and her full participation in it (at least that is as she would have wished it understood by the Union and other members at the time). She accepted that - even having regard to all the evidence she gave of what she had in fact been doing - she was not performing all the duties that she would normally have been expected to perform during the relevant periods. In short, she was in breach of her contract.
- Indeed, from her layperson's perspective she acknowledged in evidence that "for duties I was not performing I was expecting the University to make a salary deduction" and that "some deduction was merited but what was imposed was too high". The Departmental Head of Humanities, Arts and Languages, Ms Pike, gave evidence spelling out the delays and consequent anxiety and distress that the industrial action had caused to students of Ms Spackman's department, including graduating students. Her breach of contract and that of the other academic staff had had its intended disabling effect on the University.
- However, as her counsel submits, during those periods she continued to be an employee of the University (there being no suggestion that she was dismissed or her contract was otherwise terminated), the University did not prevent her from working to the extent she chose (nor indeed wish to do so) and she in fact undertook full time work which it was part of her job to undertake. Accordingly, he submits, she should have been (and should now be) paid her contractual salary in full.
- In extremis, this submission reflects that made by Mr Stephen Sedley QC (as he then was) in Miles v Wakefield MBC [1987] 1 AC 539. In that case a registrar refused to perform his duty of celebrating marriages on a Saturday morning - but otherwise worked normally on that day and for the rest of his working week. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he would not be required to attend for work and would not be paid. The refusal to conduct marriages on the Saturday was met with deduction of 3/37ths of his weekly salary. He sued for payment of that withheld sum. It being common ground that the registrar was in breach of contract, Mr Sedley submitted that employers faced a choice in such circumstances: either (1) accept the repudiation and dismiss; or (2) affirm the relationship notwithstanding the breach and pay the full salary. The "remedy" for the breach lay in the employer's right to recover any proven damages for the loss (if any) sustained.
- Their Lordships were unanimous in their rejection of that submission, in the allowing of the council's appeal and in the dismissal of the registrar's claim. The salary payable under a contract of employment is part of the mutual obligations it contains as between the parties. An employee could expect payment if he or she worked in accord with the contract. Failure to work normally was fatal to an employee's claim to enforce a right to his/her salary. Their Lordships applied the common law doctrine distilled in the extract from Chitty that I have set out above.
- On the face of it, that is the beginning and end of Ms Spackman's primary claim. Her breach of contract is admitted. She cannot show compliance with her side of the employment contract and the "simple" claim for unpaid salary must accordingly fail in the light of Miles. Indeed, had she been paid nothing at all her claim would have failed for the same reason: Wiluszynski v Tower Hamlets LBC [1989] ICR 493.
- Of course, as Mr Mead correctly submits, an employer may elect to accept the partial performance that an employee tenders as, in the circumstances of a particular case, a sufficient performance of his or her functions. Their Lordships in Miles were satisfied that in those circumstances the employee would be able to recover the full salary. Indeed, it is not difficult to envisage circumstances in which an employer might be prepared to overlook minor non-performance in order to take the benefit of those functions the employee is willing to perform. The employer cannot thereafter rely on the non-performance to justify non-payment or partial non-payment of the employee's salary.
- Mr Mead's submission on the primary claim (i.e. for the full salary) in the instant case is therefore - as it must be - that in the events which happened the University in fact accepted partial performance by Ms Spackman as sufficient performance of her contract and that accordingly she was entitled to her full normal payment. The crucial evidence of such acceptance is said to be the Email of 11 May 2005 (see para 10 above) and indeed that is pleaded as the evidence of such acceptance (Amended Particulars of Claim para 9).
- I reject that submission. It fails on its facts. The starting point is the contract of employment expressly providing that the employer would not accept part-performance as sufficient performance: see para 6 above. Next, there is the fact that the non-performance in question was a form of industrial action intended to be both significant and detrimental to the interests of the employer. To suggest that, faced with what I find were the very serious actual and intended effects of the staff boycott of such matters as invigilation and assessment, the University was departing from the explicit express contractual provision and accepting what the staff were doing as sufficient performance of their contracts, flies in the face of reality. The contrary is the case. The University were making it quite plain that staff were being asked to work normally. Equally, the plain message was that not doing so would not be acceptable as adequate performance and that that would be demonstrated by substantial reduction in pay. I reject the suggestion that any different reading of the situation can be taken from particular wording of the Email of 11 May 2005.
- As both Miles and Wiluszynski demonstrate, the fact that the employer has not locked-out the employee by barring them from the workplace nor prevented him or her from doing other work, does not itself amount to acceptance by the employer of the work that the employee in fact undertakes as sufficient performance of the contract.
- I have no hesitation in dismissing the primary claim.
(2) Payment of Partial Salary ("the Secondary Claim")
- On this aspect of the claim the applicable legal principles are a good deal less straightforward as the extracts from Harvey and Chitty extracted above make clear. It must be recalled, however, that on whatever legal basis it is advanced, Ms Spackman's claim is that she was entitled to be paid more than 70% of her salary notwithstanding her participation in the non-strike industrial action designed to cause the University such damage that it would capitulate to her Union's demands. As I have outlined, her case on the facts is that she actually worked full working weeks albeit not undertaking certain of the functions the University was most keenly seeking of her at the time.
- This secondary claim is first advanced, as I have indicated, on the footing that it was an express term of her contract that Ms Spackman would be paid an amount corresponding to the work she actually provided. That contention is, in my judgment, quite hopeless. She has written terms and conditions of employment which expressly indicate the contrary - i.e. that in the context of industrial action "... remuneration will cease."
- A claim to payment under an express term could only be sustained in this case by demonstrating that something in the nature of a variation had occurred so that the express terms set out in the written contract had been changed. True it is that the University had considered, as Ms Link told me, the possibility of taking a public "no pay" (at all) stance at the time, in accordance with the written terms. But the senior management had resolved that to do so would not help resolve the industrial dispute and may well exacerbate it. Ms Link's evidence was that the University decided that it did not want staff to go without pay if they had done some work. She considered that the payments that were made were paid "under the contract" (of employment) but that pay had been "docked" in respect of that work which the staff would not do.
- Nothing in those facts, in my judgment, works a variation of the contract. Even if one could construe out of the generic Emails an "offer" by the University (which I do not accept one can), where is the "acceptance" by Ms Spackman? Where is the "consideration" requisite to sustain a contractual variation such as to introduce a new term or modify an existing one? In any event, what is the "new" express term invoked - under which Ms Spackman can assert entitlement to more than 70% of her salary (the pleading itself is interchangeably for a "proportionate" amount of the salary or a "reasonable fee")? Where is the evidence of offer and acceptance of either variant? I make no criticism of Mr Mead in his inability to address these questions in his submissions. They have no answer. The claim based on an express term fails in limine.
- The next alternative formulation of the secondary claim is by way of an implied term. It faces all of the same difficulties. The term I am invited to apply cannot be formulated with any precision. None of the canons supporting the implication of a term can appropriately be invoked. In essence, Ms Spackman's case on this limb must amount to the proposition that there is to be reasonably implied a term (in my words) that: "the employer agrees to pay such amount as, (presumably) objectively assessed, amounts to reasonable remuneration for those duties of her employment that she chooses to perform." On the facts of the instant case, there is nothing to sustain such a term and, in fairness to Mr Mead I did not understand this part of the claim to be seriously pressed.
- On a third variant of the secondary claim, it is said that the deduction in excess of 70% was "disproportionate" to Ms Spackman's breach of contract and the excess is therefore recoverable. Again, this was feintly pressed (if at all) by Mr Mead and I deal with it only shortly. It is impossible to identify how concepts of "proportionality" enter the frame here. This is a private law not a public law claim. If- as seems plain - the claim before me is advanced only as a matter of contract, the obligation to pay a proportionate salary must be found either as an express or implied term. I have already rejected the possibility of both. The only other option is that a "proportionate sum" is that which is required to be paid as a matter of "quantum meruit". That is in any event the next head of claim that I must consider. In my judgment this freestanding assertion of a right to "proportionate" pay - whatever that may mean - is not made out.
- I come to the final, and much the most difficult (at least in terms of legal principle), basis for the claim before me - "quantum meruit". Although there has (it seems) been no modern reported case in which an employee has disputed the amount paid (or the amount or proportion of the deduction taken) in respect of less than full service under a contract of employment, the possibility of a claim in quantum meruit was at least recognised and canvassed "obiter" by their Lordships in Miles. Unhappily, there was no agreement between them.
- Lord Brightman said this (at p553):
"But what is the position if the employee offers partial performance and the employer, usually of necessity, accepts such partial performance, the deficient work being understood by the employer and intended by the employee to fall short of the contractual requirements and being accepted by the employer as such? There are, as it seems to me, two possible answers. One possible answer is that the employer must pay the full wage but may recover by action or counterclaim or set off damages for breach of contract. The other possible answer is that the employee is only entitled to so much remuneration as represents the value of the work he has done, i.e. quantum meruit. My noble and learned friend Lord Templeman prefers the latter solution, and so do I. ...
But nevertheless in the case supposed the employee has provided some services, albeit less than the contract required, and the employer has received those (non-contractual) services; therefore the employer must clearly pay something - not the contractual wages because the contractual work has deliberately not been performed. What can he recover? Surely the value of the services which he gave and which the employer received, i.e. quantum meruit."
- As that passage indicates, Lord Templeman had expressed the same view. He said (at 561):
"For my part, however, I take the provisional view that on principle a worker who, in conjunction with his fellow workers, declines to work efficiently with the object of harming his employer is no more entitled to his wages under the contract than if he declines to work at all. The worker whose industrial action takes the form of "going slow" inflicts intended damage which may be incalculable and non-apportionable but the employer, in order to avoid greater damage, is obliged to accept the reduced work the worker is willing to perform. In those circumstances, the worker cannot claim that he is entitled to his wages under the contract because he is deliberately working in a manner designed to harm the employer. But the worker will be entitled to be paid on a quantum meruit basis for the amount and value of the reduced work performed and accepted"
- However the other three of their Lordships were more equivocal. Lord Bridge (at p552) said:
"In particular I should, for my part, have preferred to express no opinion on questions arising in the case of an employee who deliberately "goes slow" or otherwise does his work in a less than satisfactory way, when the employer nevertheless acquiesces in his continuing to work the full number of hours required under his contract. There may be no single, simple principle which can be applied in such cases irrespective of differences in circumstances. But I find it difficult to understand the basis on which, in such a case, the employee in place of remuneration at the contractual rate would become entitled to a quantum meruit. This would presuppose that the original contract of employment had in some way been superseded by a new agreement by which the employee undertook to work as requested by the employer for remuneration in a reasonable sum. This seems to me to be contrary to the realities of the situation"
- Lord Oliver said (at p576):-
"I would also prefer to reserve my opinion with regard to the question whether there may not be circumstances in which an employee engaged in industrial action might be entitled to claim remuneration on a quantum meruit basis for work actually done."
And Lord Brandon took the like approach, He said (at p552):
"Like my noble and learned friend, Lord Oliver, however, I should prefer to reserve my opinion on the question whether an employee engaged in certain kinds of industrial action may be entitled to claim remuneration on a quantum meruit basis for work actually done."
- Thus it is that Ms Spackman's claim is advanced on the application of a quantum meruit approach adopted by only a minority of their Lordships in a case in which the matter did not arise (Mr Miles case was not put on quantum meruit) and in which, if it did arise, it may have been capable of relatively ready assessment.
- I must confess that, for my part, I have great difficulty in understanding how notions of quantum meruit can realistically apply in the present context (of collective industrial action short of strike action) for at least two reasons.
- First, all parties are agreed that in the instant case the contract of employment was continuing and it was governing the relationship between the parties at the time. The payment actually made by the employers was paid under that contract and treated by Ms Spackman as such (as she accepted, it was "part" of her salary). No notion of "quantum meruit" can readily be imported into her contract. If that is so, as Lord Bridge observed, it is difficult to see where or how the contractual basis for the claim arises. Mr Mead expressly abandoned the pleaded claim based on "collateral contract" and, in my judgment, was right to do so.
- Second, the notion of an employee-by-employee entitlement to quantum meruit payment simply does not "fit" with a context of collective mass industrial action by hundreds of employees designed to break the will of the employer. Such action derives its force not from the partial withdrawal of labour by an individual worker but by virtue of the collective impact. Any assessment based strictly on a post-settlement retrospective quantification of the value (to whom?) of the work actually undertaken by an individual employee wholly fails to address what Lord Bridge described as the "realities" of the situation.
- The instant case is a paradigm. In common with many salaried staff in the service sector Ms Spackman could amply fill a working day under her own steam fully engaging herself with work she was expected and entitled to do under her contract. In the run-up to the end of the academic year, one can well understand that, as a full-time academic with a range of responsibilities, she would have a host of work (perhaps "more than enough") to do. On a strict "quantum meruit" basis it might be said (and is said by Mr Mead) that she is entitled to the equivalent of a full academic salary or something only slightly less. That being so even though the actual work most needed of her at that time - the submission of her student assessments and gradings - she was deliberately not doing, with considerable implications for her students and her employer. Moreover, the force of that refusal to discharge her duties as expected of her was magnified in its impact manifold by virtue of being part of a sustained campaign directed against her employer at that time by her fellow academics.
- To my mind, the industrial action that is the antithesis of the mutuality of a contract of employment is likewise the undoing of the notion that the employee is (once action has ceased) entitled to an objectively assessable reasonable amount for the "value" of the work she or he has actually undertaken during the dispute.
- The "collectivity" dimension resurfaces in the impracticability of the quantum meruit approach. On Mr Mead's case, after the action was finished, each of the several hundred employees was entitled to seek from the employer reasonable payment for the particular work she or he had undertaken. That would involve the employer either accepting the assertion (and any submitted evidence) as to what had been done or - if not so satisfied - conducting some retrospective re-examination of what was done - perhaps over a period of weeks or months. All of that leaving out of account the damage that the employer's business or service had suffered by reason of the industrial action and the huge "cost" in terms of personnel management time in making these retrospective assessments. In the case of any dispute as to that quantum, the matter not falling within the purview of the specialist industrial jury (the Employment Tribunal), the matter would have to be tried-out by the non-specialist county or high court judge (as was the case before me) no doubt assisted, should the case warrant it, by expert evidence. In my judgment, this approach forms no proper part of the corpus of industrial relations law.
- The more "real" or "realistic" interpretation of the legal consequence of collective industrial action short of strike action is that - unless there is some express agreement by the employer to make specific remuneration for work actually done during the actual or impending action (or to accept part performance as sufficient performance) - the employee participating does so 'at risk'. In the knowledge that they would have no right to sue for the full salary (see Miles), employees engaging in collective industrial action take the risk that even if they present for work and undertake some or the most part of their ordinary duties the employer may pay them nothing at all of what they might otherwise be paid. If they get anything it will be more than they were legally entitled to expect. All the more so where (as in the instant case) the employer had expressly said that full pay will not be paid to participants and that any payments made will be substantially less than normal salary. If, having taken the risk, the employee is dissatisfied with the result, I do not consider that the law of contract - through the medium of "quantum meruit" - gives rise to any lawful claim.
- Of course, I may be quite wrong and in those circumstances (in case I am wrong) I must do my best in dealing with an assessment on a quantum meruit basis.
- Having read and heard Ms Spackman's evidence (and the evidence in support of it) I am quite satisfied that - notwithstanding the Union's instruction - she fully engaged herself in certain of her duties full time during the relevant weeks of non-strike industrial action and diligently carried them out. I accept Mr Griffith-Jones submission that any assessment must leave out of account the significant amount of extra work she did - particularly in her PAA role - as a direct consequence of the industrial action itself.
- But what was the reasonable value of that work to a notional reasonable employer? What would be the reasonable market rate that an alternative employer would be prepared to pay for the work she actually did -assuming for this purpose that an alternative employer would be prepared to pay anything at all for an academic not willing to submit on time and as required her students' evaluations. Was it, or was it not, higher than the amount the university actually paid? The burden of proof was on the claimant.
- In the event, although I heard a good deal of evidence as to what was done by Ms Spackman there was no evidence led of the actual "worth" of what was in fact done. Mr Mead plucks - almost from air - "Ms Spackman's actual salary less 5% or at most 10%" (and I note that the second of these alternatives is 100% higher than the first). I wholly reject that submission. It is no more than a guesstimate. I am not satisfied on the balance of probabilities and on the limited evidence available, that the reasonable value to a reasonable employer of the work actually done exceeds what has in fact been paid.
- Indeed it is the University which provided the nearest thing to "valuation" evidence. Its evidence (as I have indicated above) was that it had made an informed assessment - the calibre and correctness of which I accept- that if an "average" lecturer engaged in the full range of withdrawal of labour set out by NATFE, the extent of her work - compared the work normally required at that time of the academic year - would be reduced by 80%. In the event she was paid not simply a 20% proportion of her salary but 70%.
67. Alternatively, to the extent that it is legitimate or possible to quantify at all from the material before me (in the absence of direct evidence) what would be the fair or reasonable remuneration Ms Spackman might attract for the work she did in the circumstances in which she did it, I could not put my own assessment of its value to a notional employer at higher than 50% of the full-time salary of an academic of her standing. It was not suggested that Ms Spackman's actual salary was below the market rate and she was paid more than half of it. Indeed she was paid 70%. Accordingly, even on this basis her claim fails.
Result
- For all these reasons, this claim fails and is dismissed.
Recorder Luba QC 13 July 2007
