“How should workers respond to bullying and intimidation tactics used by employers during industrial action disputes?”
This is the question posed by Alan Bogg, professor of labour law at the University of Oxford, and Keith Ewing, professor of public law at King’s College London, in a post on the Institute of Employment Rights blog.
“It is a remarkable feature of British labour law that the worker who takes industrial action is usually regarded as having committed a repudiatory breach of contract,” they write, adding that this is true in relation to strikes as well as industrial action short of a strike – such as the marking boycott that has been undertaken by some members of the University and College Union.
“In the current dispute between the universities and their staff over pensions, employers are no doubt being advised by their lawyers about how best to retaliate,” they write. “These lawyers are likely to have been trained by the very people against whom they are now advising.”
The blog states that universities may “seek to recover from academic staff any losses incurred” should students choose to sue their institution as a result of the dispute.
“Historically, there are examples of legal steps of this kind in the law reports. They stand out because the practice of suing strikers for breach of contract is exceptional,” the blog says.
Most employers realise that bullying individual strikers through suing for breach of contract is petty, short-sighted and inflammatory.
“It is a matter of surprise and horror that some university employers are threatening precisely to take such action against individuals participating in an assessment boycott in the current dispute over the pension settlement.”
Universities that do pursue such action would be “taking us back to Taff Vale with this intimidation of individual strikers”, the bloggers write. In 1901, the Taff Vale case saw a railway company sue a trade union for damages caused by a strike.
“What is being proposed now over 100 years later is of course much worse,” the blog continues. “Employers can no longer sue trade unions for damages in lawful disputes such as the UCU pensions dispute…but there is no such protection for individuals, this having been thought to have been unnecessary in our more civilised industrial past.”
The two writers say they think that universities considering suing individuals are issuing “an empty threat, designed to intimidate” and to discourage participation in the industrial action.
“If the threats are empty gestures by bullying employers, the universities issuing such threats may be regarded as breaking the employment contract through a breach of the term of mutual trust and confidence,” they continue, adding that it is “unfair to dismiss an employee for taking part in lawful industrial action”.
“By their conduct, university managers run the risk of exposing their institutions to even greater liability than they probably anticipated,” the blog concludes.
“It would also be extremely helpful to workers everywhere if by their stupidity the university employers were unwittingly to contribute to the introduction of legislation protecting the right of every worker not to suffer detriment for engaging in lawful activity.”
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