UCU looks set for court battle for striking members’ pay

But law might not be on its side in its effort to prevent docking of full day’s pay, solicitor says

January 30, 2014

The University and College Union looks set to sue universities over what it claims is the “unlawful” docking of a full day’s pay for staff joining two-hour strikes after about half of institutions threatened the “punitive” action.

Despite Sally Hunt, the UCU general secretary, condemning the deductions as “vindictive and bullying” and likely to lead to longer strikes and possibly a marking boycott, many institutions are sticking with the hard line on pay.

According to the Universities and Colleges Employers Association, almost half of higher education institutions that responded to its survey (two-thirds did so) said they would deduct an entire day’s pay for the first two-hour strike, which was held on 23 January.

Others have also reserved the right to do so for planned stoppages on 28 January and 6 February.

Although the UCU has promised to sue universities for lost wages, case law is on the side of employers, claimed Chris Mordue, who heads the industrial relations team at the solicitors Pinsent Masons.

Mr Mordue said that a past case cited by the UCU – in which it successfully recovered a lost day’s pay for a lecturer at City of Westminster College who took part in a brief strike – is “not a binding precedent” as it “turned on its own facts”.

“You have to go back to first principles, and these confirm that employers can withhold pay for the full day,” Mr Mordue said.

The situation is analogous to an employee who takes part in a marking boycott, in which staff are not prepared to carry out their full contracted duties, he went on.

With staff offering only “partial performance”, “it is clear…that the employer can then withhold pay in full for each day of that action”, Mr Mordue said.

“UCU’s use of two-hour strikes is…a tactical device, and there is no reason why employers should not respond in a tactical way by deducting a full day’s pay if they think that is the best approach to contain the action,” he added.

The UCU insists that its case does not rest only on the Westminster College example, but on its own independent legal counsel.

Strikes of less than a full day have been used in industrial actions involving the fire service, bus companies and the pharmaceutical company AstraZeneca.

The UCU also refers to advice published by Pinsent Masons in October in which it notes that employees are not entitled to be paid “for the period of the strike”.

The advice observes that “the legal position in relation to action short of a strike is not entirely straightforward” but stresses that an institution must clearly tell staff that they are not expected to attend work if it withholds pay.

Meanwhile, as the argument continues over how much disruption the short strikes have caused, Gregor Gall, professor of industrial relations at the University of Bradford, said he believed that such action was effective only when targeted at key points in the academic year.

“If used as…the sole tactic, the prospects of developing leverage are slight unless this was to focus upon certain pressure points concerning exams or accreditations,” Professor Gall said.

jack.grove@tsleducation.com

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Reader's comments (1)

Jack , this is not a new issue; I recall writing about 'partial performance' and related matters in every textbook on higher education law since 1990. If you have a look at Chapter 11 (11.36 et seq) in the 2012 ed of Farrington & Palfreyman 'Law of HE' you will find discussion of this topic. Basically if employers tell staff they are not going to accept partial performance e.g. 6 hours out of 8 notional hours of work they will probably be entitled to withhold the entire 8 hours of pay. The specific complication in h.e. Is that hours of work are not clearly defined. Speaking as a taxpayer I would expect universities to act like other employers, in a fair way but taking account of the sources of funds, i.e. the state and students. Dennis Farrington

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