Staff in boycott could be sued

April 21, 2006

Abertay's vice-principal issues warning backed by legal experts.

Abertay Dundee University has warned staff that it could sue them for taking industrial action short of a strike.

Abertay appears to be the first institution to have publicised such a warning. But a legal expert has told The Times Higher that if the action continued beyond 12 weeks, universities could fire staff even if the industrial action was legal.

The Association of University Teachers' Scottish council has condemned a letter from Nicholas Terry, vice-principal of Abertay, as "aggressive and threatening", and the union's Scottish executive is urging Abertay's senior managers to exercise caution.

The letter to Abertay's AUT branch says that action such as a boycott of assessments and exams could leave the university exposed to legal claims from students.

The letter adds that the university has been advised by lawyers that in the event of legal claims, it should bring legal action for breach of contract against the staff involved.

"The university would wish to seek ways of avoiding this, but at the present time it is impossible to exclude legal action as a possibility, depending on the effect of the industrial action on the university and importantly on its students," Professor Terry writes.

Thomas Player, a partner and specialist in industrial relations and labour law at legal firm Eversheds, said that managers would have two options if students were to sue an institution.

"The first is suing individual employees for damages because, in theory, although the trade union is generally immune to proceedings, individual employees are not," he said.

"The second possibility is for a university to consider discipline or dismissal."

Diane Gilhooley, head of education employment at Eversheds, said there was a statutory 12-week protected period during which any decision to dismiss staff would automatically be unfair. The protection from dismissal diminishes if industrial action continues beyond 12 weeks.

After that, an institution might be able to dismiss staff legally if it had taken reasonable steps, including procedural measures, to resolve the dispute with the union.

But Mr Player said this was unlikely to happen.

"Dismissing large numbers of academics will be unpalatable, while dismissing selectively will trigger significant litigation risks," he said.

"So, if industrial action begins to bite, it is possible for universities to take action. However, any action against employees would have to be carefully considered in view of the legal protection and inevitable pitfalls," he said.

Abertay is keeping the details of its legal advice confidential.

But a university spokesman said: "Our legal advisers were clear in recommending that we should highlight the vulnerability of the university to legal claims from students, and that damages suffered as a result might be, in law, recoverable by means of legal action against staff deemed to be in breach of their contracts of employment.

"We emphasise that we have not decided what action we should take in response to action short of a strike," he added, "and we are still hopeful that this matter can be resolved through negotiation."

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