London Met triumphs in test case over strike pay

July 27, 2007

London Metropolitan University has won a landmark court case, confirming universities’ right to withhold pay from staff who refuse to carry out all their duties during industrial disputes.

The judgment confirms that staff who do not fulfil all their contractual obligations during industrial action are not entitled to any pay for the work they do carry out, unless their employer agrees otherwise.

The University and College Union, whose members have in the past refused to mark student exam papers as a key tactic during industrial disputes, said it was “disappointed”.

Former lecturers’ union Natfhe, now merged into the UCU, supported a legal claim against London Met by Helen Spackman, a lecturer in performing arts who had pay deducted from her salary after she took part in industrial action in 2005, in a dispute over new staff contracts.

The action consisted of a full strike for five days followed by “action short of a strike”, including a boycott of exam invigilation, student assessment and appraisal activities.

The university agreed to pay staff taking part in the action short of a strike but deducted a minimum of 30 per cent, to account for any work not done. Ms Spackman went to court as a test case to challenge the deductions in May 2007. While she accepted the loss of pay during the full strike, she sought her full salary for the days in which she took action short of a strike. She had worked a minimum of 40 hours a week during that time but did not submit marks or assessments, she said.

The judge dismissed the demand for full payment, saying the claim was “startling” given that she admitted that she was in breach of her employment contract. “Had she been paid nothing at all her claim would have failed for the same reason,” he said.

One of the union’s arguments was that as the university had allowed employees to work, it had implicitly accepted the work they were doing as meeting the re - quire ments of their contracts. But the judge said this flew in the face of reality, as the university had made it clear that it would not accept partial performance.

As a fall-back Ms Spackman argued that, given the work she had done during the action short of a strike, the maximum deduction should be only 5-10 per cent.

The judge said it was up to Ms Spackman to prove that the deduction was too large, which she had failed to do. The 5-10 per cent figure was “no more than a guesstimate”, he found, and suggested that the deduction could reasonably have been much higher than 30 per cent.

London Met was awarded costs, to be paid by the UCU. It said: “The university must question the judgment of UCU officials in bringing this case and wasting the money of its members. Such an ill-advised act of nihilism does nothing to serve the genuine interests of regular union members.”

A UCU spokesman said: “We are obviously disappointed that we lost the case, but we move on and make no apologies for pursuing legal action on behalf of members.”

* London Metropolitan University and the University and College Union have agreed to start talks on union recognition. At a meeting last week chaired by Brendan Barber, the general secretary of the TUC, the parties also agreed to discuss redundancies. If they reach an agreement, the UCU will stop its academic boycott of London Met and its planned ballot for industrial action.

melanie.newman@thes.co.uk </a>

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