Striking, sanctions and the battle of statistics

April 21, 2006

The Times Higher advice panel answers readers' questions on pay docking, pensions and a host of other concerns relating to the industrial dispute

If I have taken part in strike action, does it affect my pension or other benefits?

* Our panellist from the Universities and Colleges Employers' Association says that your pension and benefits will be affected. "Taking part in strike action does affect your pension and, potentially, other benefits, if your employer withholds pay as a result of your participation," he says.

"Any strike day will not count towards pensionable service because you would not be receiving pay on that day. Members of the Teachers' Pension Scheme will still be covered for death-in-service benefits but members of the Universities Superannuation Scheme will not. It is, however, possible to ensure that you continue to be covered for all benefits, including pensionable service, if full normal contributions are paid by you and your employer."

Our Natfhe panellist says: "Very marginally indeed, contrary to scare stories being put out by some employers. The cost is the loss of one day's pay from the calculation of annual earnings." He refers those concerned about this issue to the Natfhe website for full details: .

Our panellist from the Association of University Teachers says: "Employers have the discretion to withhold contributions to the USS for the period of the strike action, but it has been the experience of the AUT in previous one-day strikes that most university employers do not do so and therefore participation in strike action generally does not affect USS pensions."

She adds: "Institutions that withhold contributions usually make provision for members to make up pension and additional voluntary contribution deficits from their pay. Action short of a strike that does not result in your being absent from employment will not affect your pension rights.

"In relation to the TPS, members should expect that employers will report strike days to the managers of the relevant scheme as a day for which you are not in pensionable employment. Employers do not have the scope for discretion under the regulations governing these schemes unlike those who are part of the USS. However, your pension will be affected by only a very small amount. For further advice, particularly if you are retiring soon or paying AVCs, please refer to the AUT's website ( ) and the advice on industrial action and pensions. Other benefits should not be affected."

My university is threatening to dock my pay because of the non-strike sanctions. Can they do this and how much can they take?

* Our Ucea panellist says: "Your university is entitled to dock your pay for breach of contract and action short of a strike as you will be deliberately refusing to undertake the normal duties required by your contract. How much is withheld will depend on your university's policy. As your university is not accepting partial performance, on each occasion on which you refuse to undertake the required work, your university can ask you to undertake no further work that day and withhold pay for each and every such day. They could also withhold a proportion of your pay continuously or withhold all your pay continuously until you work your full contract."

He adds: "For any deductions they make, they can calculate a day's pay as 1/260th of your annual salary. The choice on whether to withhold pay is the university's. The choice on whether to take industrial action is yours."

Our Natfhe representative counters: "Deduction of pay for non-strike sanctions (or 'partial performance', as it is often called) is being threatened by a substantial minority of institutions. In fact, this is a complex area that employers are very nervous about. Any deductions must be proportionate to the loss to the university. However, in the case of Natfhe, where we are setting exams but not marking them - but will mark them at the end of the dispute - there will be no loss to the university."

He adds: "If the employers do make deductions, they can expect lengthy court cases. It would appear that Ucea has had to amend its advice to employers because universities were unhappy about the initial advice. At least one university, for example, has done a U-turn and announced that it will not, after all, be making punitive deductions, while another university that threatened a lockout stepped back when Natfhe challenged it. We take this threat very seriously nevertheless, but it would be the 'nuclear' option for employers, who would lose vast amounts of goodwill and would risk never getting the exam scripts marked."

The AUT panellist also argues: "As a general principle of contract law, employers can withhold pay for work not done. However, doing this lawfully is complex and difficult. The amount withheld cannot be arrived at arbitrarily or punitively - it must relate to the work boycotted by each member of staff. It may be that the courts will have to decide whether any employer gets this right. One thing is certain, AUT members won't be carrying out work for which they have not been paid. Why would they? The threat of pay deductions will make it more likely that the assessment boycott will do irretrievable damage to students.

"The unions are in a strong position: if there is any pressure on members to carry out work for which pay is being withheld, we always have the option of continuing the industrial action until the employers see sense."

I work in an undergraduate office and I am in regularcontact with students who are growing angry that their academic futures may be at risk. I am not involved in the industrial action and have no particular view on it. But why did the academics' unions submit their pay claim separately from the support staff unions, and at such an early stage?

* Our AUT panellist says: "The Joint Negotiating Committee for Higher Education Staff was established in 2001 and includes two sub-committees.

One negotiates the pay of academic and some academic-related staff (ASSC) and the other negotiates for non-academic staff (PTAAS). These structures contain a number of weaknesses, especially when combined with the single 51-point spine. If UK universities are to recruit among the world's best academic staff, salaries must be competitive. If the 51-point spine is to be used as an excuse by employers to hold down pay, UK higher education will be locked into a continuing decline. The academic unions are determined not to let this happen."

She goes on: "There are different arguments applying to non-academic staff and that is why two negotiating committees were established. The academic unions are willing to work with the 51-point spine and the new pay framework but only if national negotiations enable enough flexibility to respond to market circumstances. The academic claim was submitted in October 2005, before institutions set their budgets, to enable all parties to consider how the 25 per cent of new funding coming into the sector over the next three years could be fairly distributed. The support staff unions were informed of the academic unions' approach but chose to stick to their traditional timetables."

Natfhe also says: "We submitted the claim much earlier this year because we wanted to avoid the position of previous years when the employers said budgets had already been set by the time of the pay talks. This year, aware of substantial extra funding, we were determined this excuse could not be used. Had we not done this, members would quite rightly have accused us of naivety. We had hoped the support staff unions would take a similar approach. Although they did not submit the claim at the same time as we did, they have also submitted their claim much earlier than usual - and have now rejected the employers' 3 per cent offer. So the support unions and ourselves are now in a similar position in respect to the timetable for submitting a claim."

However, our Ucea panellist says: "Despite the move to a single pay scale as a resultof the framework agreement, the academic unions have been reluctant to engage in joint negotiations with the support staff unions.

The national negotiating machinery, agreed with all seven unions in 2001, included a separate academic staff sub-committee as a transitional provision. Both Ucea and the support staff unions believe there is an extremely strong case for taking the next step to single-table bargaining once the transition to the single pay spine is completed nationwide this August."

He goes on: "As regards the timing of the academic unions' claim, this seems to have more to do with their own politics and tactics than with a realistic view of the time needed to negotiate increases that are not due until August 2006.

"This impression is reinforced by the declaration of a dispute before negotiations had even got under way, the submission of a costed claim only after a dispute had been declared and the refusal, to date, to suspend industrial action even for the duration of negotiations."

I am on a fixed-term contract and I am worried that I might not have my contract renewed because I am taking part in the action. What is my legal position?

* Our Ucea panellist says:"If you take part in industrial action, you would legally be considered to be in breach of your contract of employment as you would deliberately not be fulfilling the terms of your contract. However, it could be regarded by an employment tribunal as automatically unfair to dismiss an employee for taking part in 'protected industrial action' and the Fixed Term Employees Regulations 2002 protect employees from being treated differently from comparable permanent employees. But you should be aware that your employer is entitled to withhold pay from you for any days that you take part, and that your pension could be affected as a result."

Our Natfhe panellist says: "Any attempt not to renew your contract because you are taking part in the action would be an act of trade union victimisation and Natfhe would vigorously challenge it."

He confirms: "Fortunately, the Fixed Term Employees Regulations legally protecting hourly paid and fixed-term contract staff come into force this year. Any attempt not to renew your contract by the usual time or to suggest your contract might not be renewed should be immediately reported to your Natfhe branch."

Our AUT panellist says: "The ending of a fixed-termcontract is a dismissal in law and as such can be carriedout only for a lawful reason. Dismissal as a result of taking part in lawful industrial action is unlawful within the first 12 weeks of the action and any such dismissal would be automatically unfair. Even after that period, an attempt to dismiss you but not all other colleagues taking part in the action would still be unlawful. Any attempt to dismiss you for taking part in the action could be challenged at an employment tribunal.

"The AUT will support any member who is victimised for taking part in the official action so please take union advice immediately if any threats are made to you."

Natfhe is instructing members to stop involvement in various quality assurance activities and to work to contract. If I were to join this, would I run the risk of being dismissed?

* The Ucea panellist says: "If you do not undertake your normal duties in full, you will be breaking your contract of employment in the same way as you would be if you took part in a day of strike action.

"However, as stated before, it could be regarded by an employment tribunal as automatically unfair to dismiss an employee for taking part in 'protected industrial action'."

Our Natfhe spokesman argues: "Industrial action that is covered by a lawful industrial action ballot is a protected act. So long as the action being taken falls within the type of quality assurance activities set out in the ballot, it would be automatically unfair to dismiss you for taking such action.

"Full details of precisely what the action Natfhe is also calling on members to boycott can be found at .

I am an academic but not a union member. While I agree that lecturers' pay should be increased, I find it difficult to get to the bottom of the wildly varying figures quoted by the unions and the employers. I want to be able to make logical and well-founded decisions on this issue, so whose figures best stand up to scrutiny?

* Our Natfhe panellist says: "There are three key sets of figures that are disputed. The first is whether the claim is affordable. Natfhe and the AUT believe the sector can fully afford the claim and the explanation is given in the appendix to the joint unions' pay claim, which can be downloaded at www.

"The second is whether academic staff are really as badly paid as the unions claim. The evidence for this is multifaceted but the best single source is the Bett report of seven years ago, which conclusively established the serious shortfall in academic salaries. Politicians (including the Prime Minister) and vice-chancellors (including the Ucea negotiators) have drawn attention to the conclusions for several years. The latest claims about an average salary in excess of £40,000 defy the laws of statistics. They include the growing number of high-flying staff head-hunted for the research assessment exercise and ignore the army of hourly paid staff.

"The third is whether what is currently on offer (3 per cent) is really rather more generous than the unions will admit. The employers are claiming that staff will all get 3.5 per cent from the framework agreement on top of the 3 per cent offer, plus increments. But we have been told for three years that the low pay offer is compensated by the same 3.5 per cent framework gains, and up to 80 per cent of Natfhe's members - staff at the top of the grade and hourly paid staff - will not get increments this year until framework agreements are concluded. In any case, the 3.5 per cent figure is fictional as most staff will get 1.1 per cent from the framework.

Our Ucea panellist counters: "Many of the employers' and unions' figures do vary, at least partly because they use different sources of data. The Pounds 40,657 figure for average pay quoted by Ucea was drawn from the Office for National Statistics data on pay at April 2005. These figures allow for cross-sector comparisons to be made, whereas Higher Education Statistics Agency (the only other source of comprehensive data on academic pay) figures do not - partly because they only cover basic salaries. The Hesa data that the unions have used on average pay relate to 2003-04. Other figures quoted by the unions involved in this dispute, such as that of a 40 per cent decline in relative pay levels, seem to have gained credence through repetition but need further scrutiny. Are the unions really saying that average academic earnings should now be almost £60,000?"

Our AUT panellist says: "The different figures quoted by the unions and the employers in relation to the earnings of academic staff in higher education come about because of different sources of data being used. The average salary data for academics used by Ucea come from the Government's Annual Survey of Hours and Earnings. Ashe is a sample-based survey, using data supplied by a sample of employers. According to Ashe, in April 2004 the average gross annual pay of a full-time higher education teaching professional was £38,319. However, this figure does not include the pay of research staff, who are on average on lower paid grades than teaching-only and teaching-and-research academics. Therefore, when Ucea refers to pay for academics, its average does not include research staff.

"The average salary data quoted by the AUT recently come from the Higher Education Statistics Agency, which collects data on all - or approximately all - staff in higher education, not just a sample. Hesa averages for academics often include researchers as well as teachers in higher education. In 2003-04, Hesa's overall salary for full-time academic staff, including researchers, was £35,773 - a lower figure than from the Ashe sample for higher education teaching professionals, probably because Hesa's figure includes researchers.

"It is also worth looking at the average salaries of different groups of staff - not just the average overall. In 2003-04, according to Hesa, average full-time salaries were as follows:

* Professors (and research staff of equivalent grade): £56,944

* Senior lecturers and researchers: £41,776

* Lecturers: £32,531

* Researchers: £25,807.

"What is not in dispute is the huge increase in funding through top-up fees and other funding streams coming into the sector from this year - between now and 2008 an extra £3.4 billion or 25 per cent.

"The unions believe that a third of that additional funding should be spent on improving staff pay as was promised by representatives of the employers during the top-up fees debate. The employers, however, are seeking to renege on that commitment, and hence the current, regrettable, dispute."

This advice panel includes the Association of University Teachers, Natfhe, the Universities and Colleges Employers' Association, Research Councils UK, the Equality Challenge Unit and Rachel Flecker, an academic who sits on Bristol University's contract research working party.

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