13/07/2023
Those working in higher education will be very familiar with the current dispute over pay and conditions of employment which has led to the marking and assessment boycott (‘MAB’) at many of the UK’s universities. The University and College Union (UCU) are backing a campaign whereby academics participating in industrial action essentially work to rule, or in some cases refuse to assess student work at all, which has impacted assessments of work and the degrees being awarded to students. Universities are grappling with ways of managing the disruption caused and considering any steps they can take against relevant staff. Some institutions have implemented contingency arrangements for student assessment, coupled with pay deductions for staff participating in the boycott.
The law in this area is complex, although since the Court of Appeal case in Mercer v AFG Ltd [2022], it is clear (at least until the judgment is overturned or distinguished, or the law changed) that being subjected to a detriment for participating in industrial action is not the same as being subjected to a detriment for taking part in trade union activities, (the latter being explicitly protected under s146 of the Trade Union and Labour Relations (Consolidation) Act 1992). In simple terms therefore, there is (currently) no freestanding statutory claim an employee can bring if they are subjected to a detriment for taking part in industrial action eg, by having a deduction from pay for partial performance, or being subjected to some other adverse treatment.
That said, universities must still proceed with care because adverse treatment arising out of the industrial action might still amount to a breach of contract or contravention of a university policy, or statute/ordinance/regulation. Staff who deliberately disrupt an employer’s business may however themselves be in breach of an express or implied term, justifying the action taken or threatened by their employer. Universities should also be on the lookout for other forms of potential misconduct, such as academics involved in the MAB impugning the reputation of the institution, or colleagues who continue to work ‘normally’.
Each university will need to think carefully about any action they take. Our experience is that a measured and pragmatic approach is invariably the best way forward, bearing in mind that ultimately, the dispute still needs to be resolved and staff will continue to work together in the future.
If any HR managers or in house lawyers would like to discuss any of the above, please contact Ashley Norman or visit our Higher Education or Employment pages for further information.
