Commentary

(f) Effect of strikes on a day's pay

Division BI Pay
| Commentary

(f) Effect of strikes on a day's pay

| Commentary

(f)     Effect of strikes on a day's pay

It follows from the principles set out in para [10.07] ff, and from Miles v Wakefield [1987] IRLR 193, [1987] ICR 368, HL in particular, that where the employee deliberately withholds his labour and goes on strike (so that there is a total cessation of work) for part of the pay period he loses his entitlement to part of his wages. In this situation the courts have accepted that the employer is entitled to deduct a sum from the employee's wages without having to sue for the loss occasioned by the strike action. As Elias LJ explained in Hartley v King Edward VI College [2015] EWCA Civ 455, [2015] IRLR 650, [2015] ICR 1143:

''There are two distinct routes by which the employer may seek to claim the right to with-hold a day's pay from striking workers. First the employer may be entitled to damages for the employee's breach of the contract of employment in refusing to work and may be entitled to with-hold a sum equivalent to his entitlement to damages by way of equitable set-off: Sim v Rotherham MBC [1986] ICR 897. Second the employer may rely on the principle that the employee is not entitled to be paid if he is not ready and willing to perform the work he was employed to do: Miles v Wakefield 1

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