Deductions for Action Short of a Strike

Exploring Universities’ Pay Deductions for Action Short of a Strike (ASOS) through the Medium of an Undergraduate Law Exam Question

Paula is an underpaid senior lecturer in a British university. She is worried about her pay and conditions and would like to have an adequate pension that won’t require her to try and die soon after retirement. Paula’s career development and pay have been affected by structural sexism and racism in the higher education sector, including pay inequalities. She is striking 25 November to 4 December 2019 and also wants to take action short of a strike (ASOS). She’s currently considering working to rule - for example: making sure that she has filled in all of her REF paperwork to the most impressive level, which will impact on her ability to do important tasks, like filling in other REF paperwork, or attending multiple meetings with university managers about plans to merge English Lit with the stem cell research unit and abolish all remaining humanities. Paula is worried to hear that her university is threatening to deduct 25% of her salary for the duration of the ASOS.

Advise Paula in 10 steps or less on the legal and political issues concerning deductions for ASOS.

Exam response by the Social Studies in Labour Regulation Collective:

1.     Paula, our overall advice is that all of us need to engage with strike deductions for ASOS as a political issue, not (just) a legal issue. First things first, employers don’t ever have to make deductions for ASOS. It’s not a legal obligation, but they still decide to go ahead. Why? Because they want to threaten us and they know that for us to take a legal route to stopping them requires us to go to court and to convince the judge that the deduction is unlawful. The law is sometimes on our side with ASOS deductions and sometimes not. So instead of bearing the costs and stresses of legal action, we need to name and shame universities who are threatening these deductions. Get yourself out there, on twitter, waving banners, meeting with your VC, whatever it takes. Universities are over-working us and failing to do anything realistic about structural race and gender inequalities in pay. When we’re trying to stop over-working, they’re threatening to deduct more of our pay for ASOS. This is even more galling for those of us affected by institutional sex and/or race pay inequalities (whoops, slipping into the next exam response here). ASOS deductions are not just a legal issue, they’re about universities using the same bullying tactics they often use on us, but more so. So in response we need to #UCUStrikesBack.

2.     If you’re interested in reading more about the legal technicalities, Paula, settle in, get yourself a cup of tea, furrow your brow. We’ve got some contract law coming your way.

3.     Paula, any industrial action can be a breach of our employment contracts.

4.     Paula, the thing is that a strike is definitely a breach of contract; ASOS may or may not be, depending on the terms of the contract, the type of ASOS, and what a court thinks about both of these things.

5.     Paula, the reason we get 100% of our pay deducted during a strike is because we’re not coming into work, hence not performing our contracts (see further below). The Trade Union and Labour Relations Consolidation Act 1992 gives us certain statutory protections that overlay the contractual position at common law, which mean that we can’t be dismissed for participating in an official strike that has been lawfully organised by our union. However, the employer still has remedies through our individual employment contracts including not paying us when we are on strike.  When we go on strike, employers can deduct pay directly from our wages on the basis of yearly salary/365 (Hartley 2017, SC). Hence we do not get paid when we are dressing up as the pink panther, carrying around a 10 foot shark,  emailing pictures of our sad faces to university management, dancing, or tweeting funny gifs about our overpaid Vice Chancellors to Jo Grady.

6.     Paula, when we engage in action short of a strike because we want to fight back against “die early pensions” and/or structural race and gender pay inequalities, the question of whether employers’ pay deductions are lawful depends on whether our ASOS gets in the way of us performing a contractual term. The employer will try to argue that they can make deductions because we have not performed a term of our contract. In court, they would not always be successful. But in the meantime, they are using similar mechanisms to strike deductions to make it look more legally certain for them. In fact, the debate over ‘partial performance’ is still quite open for employees and gives rise to the following questions:

a.    What type of thing is it we’re not doing? Are we withdrawing our cooperation, going slow, not doing overtime etc?

b.    Is there an implied or express contractual term that’s going to trip us up? There are lots of implied terms in employment contracts. And academic contracts contain some broad express terms. Have a read of your contract and see what it says.

c.     If our contracts don’t demand performance of a particular task then not doing that particular thing normally isn’t a breach of contract (Burgess v Stevedoring 2002) – and this applies to the withdrawal of goodwill. However there’s a lot of debate about this because withdrawing goodwill has been judged in the past as a breach of the implied duty of faithful service (e.g., Ticehust 1992, although much debate since).

d.    It is lawful for us to withdraw goodwill but we have to do what’s in our contract. Added to that is the problem that what counts in the end is what the court thinks is in our contracts. (In MoJ v Prison Officers Assoc (2017), the CA decided that refusal of prison officers to do voluntary duties including assessing suicide risk was not a breach of the implied term to act in good faith. How would this apply in a higher education context?)

e.    Working to rule uses the employer’s bureaucracy against the employer. Think of all that lovely REF paperwork. An example from our railway colleagues is the case of ASLEF No 2 1972, in which train drivers had a lot of fun with a rule that required them to ensure their engine was in ‘proper order’ before operating the train. Harvey’s on Employment Law says a ‘punctilious’ performance is ok but a ‘pernickety’ performance is not. Again, it depends on context (para 337). Paula, we can’t be wilfully disruptive. But if we perform our REF paperwork in a way that meets our contracts but isn’t always the most convenient for our employers, we may or may not be found to be in breach of contract. This is a fine line to decide and for courts to interpret, with the risk being that deductions of pay will be permitted throughout an ASOS period if court decides against us.

f.      Deliberately bad or crap performance at work is a breach of contract. This includes go-slows. Paula, you have to keep going fast! Keep visualising your university mission statement!

7.     If we are still performing our contracts in full despite doing ASOS, then employers obviously can’t make any deductions. This would be our first argument in response to any ASOS deductions: we’re currently being massively over-worked and all we’re doing is dialling back on the over-working whilst still performing our contracts. At most, we would argue, we’re withdrawing some goodwill or getting a bit punctilious about the REF. But whether our argument would be successful in court would depend on how employers and UCU position the ASOS and whether any court finds in our favour or universities’ favour.  In the meantime, the employers have what they hope is the upper hand, threatening deductions and then making them, unless and until they are challenged legally or POLITICALLY.

8.     Paula, if our ASOS means we’re not performing some part of our contracts then in theory:

a.    If it’s a serious breach of contract, employers could treat this as a repudiatory breach of contract and terminate our contracts;

b.    They could accept part performance and try to figure out how to make appropriate deductions to our pay (lots of uncertainty here); or

c.     They could refuse part performance and made a deduction for the full period of ASOS (Miles v Wakefield 1987; Spackman v London Metropolitan Uni 2007).

As we are not going to give up on the really important parts of our jobs during ASOS, it’s unlikely that employers could terminate our contracts. Instead, employers are likely to argue that ASOS = part performance = 25% (or similar) deduction of pay. But as argued above, this isn’t straightforward. First of all, we’re saying we’re performing in full and they would have to show why this is not the case. Second, even if it’s decided to be partial performance, why is 25% the correct deduction across all employees in an institution for what are likely to be very varied situations depending on people’s roles and current teaching obligations? Finally, any institution that tries the 100% deduction for ASOS has forgotten what happened to them in public relations terms during the 2018 strike and should be promptly reminded (ideally using a 10 foot cuddly shark).

9.     Why do employers think they can make 100% deductions for ASOS?

a.    They are not scared of 10 foot cuddly sharks. Also they don’t like employees or other humans.

b.    One often-cited judgment is Miles v Wakefield (1987) in which Lords Brightman and Templeman said that if what you do doesn’t fulfil your entire contractual obligations, then you get nothing. You can make a claim for what you have done on a quantum meruit basis but this may or may not be successful (and often isn’t).

c.     Subsequent cases are all over the place but tend to agree with the position that as long as the employer makes it clear they are refusing to accept partial performance then they can make 100% deductions.

d.    It’s not impossible this could be overturned but in the meantime, universities are relying on Miles v Wakefield to frighten you, Paula. And remember our earlier point, that unless and until unions take universities to court successfully OR we challenge them in other ways, universities have the upper hand in practice.

10.   Paula, as regards those endemic sex and race pay inequalities and your university’s response, we realise there are serious issues. Yes, we are aware that your university has cited an Athena Swan award that you helped them gain (by working weekends and evenings and passing up the opportunity to finish your monograph) as evidence that they are taking things seriously. Yes, we agree that this is a form of institutional gas-lighting that could be called out. In a future problem question we will be focusing on your university’s obligations to ensure pay equality that arise under the Equality Act 2010. We will also be outlining how you can find out about your own institution’s exact pay inequalities and what can be done about this, in addition to the fabulous work that our UCU is doing. Have you finished your tea? Would you like something stronger?

Love and hugs from your friends in the Social Studies in Labour Regulation Collective.