Out-Law News

Universities to be hit with three days of strikes in November

Emma Noble tells HRNews about making full deductions or partial deductions from the pay of striking workers

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  • Transcript

    More than 70,000 lecturers and staff at 150 universities are set to strike for three days later this month in the long-running dispute over pay, conditions and pensions. The University and College Union (UCU) said the strikes - on November 24, 25 and 30 - will be the biggest ever to hit UK universities. 

    This has been widely reported in national press as well as the BBC and ITV. The union says the disruption can be avoided if employers make improved offers, but it warned that strike action will escalate in the new year - alongside a marking and assessment boycott - if the dispute is not resolved. Union members will also begin industrial action short of striking from 23 November. That will involve working to rule, refusing to make up work lost as a result of strike action and declining to cover for absent colleagues.

    The Guardian and The Telegraph quote Jo Grady, the UCU general secretary. She said, “If university vice-chancellors don’t get serious, our message is simple – this bout of strike action will be just the beginning.” Responding to that, Raj Jethwa, chief executive of the Universities and Colleges Employers Association, said there was ‘disappointment’ across the sector at the decision taken despite discussions on bringing forward the 2023-24 pay negotiations in response to cost-of-living concerns. 

    Earlier in this dispute when strikes were threatened back in February one of the most contentious issues was around pay deductions, and we expect the same again. THE’s website ran the headline ‘Union clashes with managers over pay deductions ahead of strike’ reporting how, in addition to docking pay for strike days, some universities were saying they would deduct up to 100% of salary for those employees taking action short of a strike. According to the UCU, one university had said it would deduct 50% of pay for staff who refused to reschedule classes lost to strike action. Another said it would dock a third. Another said it would withhold 25% of staff pay if materials not shared because of strike action were not available to students, potentially rising to 100%. 

    On the deductions, UCEA’s Raj Jethwa released a statement on the legal position. He said: “Employers are completely within their rights to dock staff pay. Universities are entitled to withhold pay for partial performance; our recommendation was that actually it should be 100 per cent of pay withheld. Some institutions are adopting a lesser figure and that’s a matter for them and they’re perfectly within their rights to do it.”

    So, let’s pick up on that. We know some universities are considering 100% deductions for the upcoming 3 days of strikes, whilst others are considering partial deductions. Emma Noble is a specialist in this area and earlier I phoned Emma to get a view on both approaches:

    Emma Noble: “In terms of making 100% deductions for partial performance, that's relatively straightforward. The institution needs to write to employees and tell them that they're not going to be accepting partial performance and, therefore, that their pay will be deducted. They do have to communicate that the university won't accept partial performance so, therefore, the employees don't need to attend work because they're not expected to work if they're not prepared to undertake their full duties. Obviously, I understand that might not be attractive if it's likely to impact on the student experience significantly, but if the action short of strike were to take the form of a marking and assessment boycott, for example, during a time when other duties of an academic are less impactful, for example if teaching has ended, that could nevertheless be a route worth considering and one which we know that some universities did implement in the local ballots earlier this year.” 

    Joe Glavina: “What about making partial deductions. Is that more tricky?”

    Emma Noble: “Yes, so making partial deductions can be far more tricky because you'd want to make the deductions to pay justified and as though there's a rationale behind the level of deductions and often that would be on the basis that the level of deduction is referenced to the work that's not been undertaken when assessing the individual's overall duties. So, again, to do that lawfully the university would need to clearly communicate to staff in advance of making any deductions that partial performance isn't acceptable, that the university would be entitled to make a full deduction because you're not prepared to accept partial performance, but that essentially, on a purely voluntary and ex gratia basis, you intend to withhold only part of the employee's pay without prejudice to the university's right to make that full deduction and that the right is reserved to increase the amount of pay being withheld, or to make a total deduction at some later date. So, there's lots of tactical considerations and, obviously, the most difficult is really in assessing what the level of deductions is that should be made with reference to the percentage of work that the individual isn't completing.”

    Joe Glavina: “You mention tactics, Emma. Tell me more about that.”  

    Emma Noble: “Yes, so there are lots of tactical considerations in determining whether to make deductions at all, whether to do it full or partial. You've got lots of interests, I guess, to balance in making that determination. One particular factor which a lot of institutions are mindful of is the deterrent factor. Obviously, if you're not going to make a deduction it's almost being seen as rewarding somebody for not performing their full duties which, obviously, is very unattractive and particularly if you've got other staff who are going about their day-to-day work in a normal way and are performing the contract. So, I guess the key factor, or tactical consideration, is really whether you want to be seen to be rewarding people who aren't performing their full duties.”

    Joe Glavina: “I’m guessing that HR have a key role to play here, especially around the communications piece?” 

    Emma Noble: “Yes, absolutely, I think HR have a really important part to play in the contingency planning and responding to industrial action and a key part of that is in staying in touch with employees and having a really carefully drafted communications and strategy plan and in just reminding staff that, obviously, the university are the employer, and they can't be seen to be accepting partial performance in any way.”

    On the subject of pay in this sector, you may have seen the story in People Management flagging how the vast majority of employers don’t fully understand how the recent Supreme Court ruling in Harpur Trust v Brazel could impact their business. The court ruled that workers like her who are only employed during some weeks of the year, but who have a contract which lasts for the full year, are entitled to a full year’s statutory holiday entitlement, which is 5.6 weeks per annum. The key point is if you ignore that case you risk failing to budget for that extra cost, as well as reputational damage and, potentially, employment tribunal claims. We covered that issue last week in our programme called: ‘88% of employers fail to grasp impact of Harpur Trust holiday pay ruling’ with Helen Corden explaining the position in some detail. We’ve put a link to that programme in the transcript of this programme.

    - Link to HRNews programme: ‘88% of employers fail to grasp impact of Harpur Trust holiday pay ruling’


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