Universities may be entitled to withhold pay from academics who cause disruption by working to rule, a legal expert has advised.
As university staff prepare for a second day-long national strike this year, planned for 3 December (the first was held on 31 October), attention has started to turn to the continuing work-to-contract industrial action being taken in protest at this year’s 1 per cent pay offer.
Several institutions, including Newcastle University and University of Wales Trinity Saint David, have written to staff warning them that any type of industrial action, including “partial performance”, will result in the withdrawal of wages.
While the University and College Union is not advocating “partial performance”, it is asking members to “abide strictly to the terms of your contract” and work only the hours set out in workload agreements – generally 40 hours a week for full-time academic staff.
When working hours are un-defined, academics should not exceed the 48 hours a week stipulated by the Working Time Regulations, the UCU says.
But Christopher Mordue, a partner at solicitors Pinsent Masons who heads its industrial relations and higher education team, said that institutions can ask staff to work beyond these hours in any single week.
“The Working Time Regulations are not as restrictive as the UCU has claimed,” he said. “They allow for significant variations in workload as long as the [48 hour a week] average is not exceeded over a 17-week period.”
Mr Mordue also cautioned against a “go slow” on marking, in which staff are advised by the UCU to follow strict Quality Assurance Agency guidelines on grading that may delay the return of essays while also clocking up hours towards the 48-hour workload maximum.
“The UCU is focusing on the express terms in people’s contracts, but the implied terms give universities a lot of discretion to say what staff must do with their time,” Mr Mordue said.
Universities can order staff to prioritise teaching and marking over other administrative duties and would be entitled to withhold wages if their expectations were not met, he added.
“Universities can legitimately expect people to work in the same way [they did] before they started work-to-contract,” he added, although they were unlikely to withhold salaries unless major disruption occurred.
“That would become a scenario when people are refusing to mark work or set exams,” Mr Mordue said.
Michael MacNeil, head of higher education at the UCU, said he was disappointed by university threats to “unjustly deduct pay” as they failed to recognise that “members have always gone above and beyond…their contracts”.
“Employers have relied on that goodwill for too long without acknowledging or rewarding it,” he argued.
Pay talks held last week between the Universities and Colleges Employers Association and the UCU failed to make any progress after institutions claimed that they could not afford to improve their 1 per cent offer.
However, Mr MacNeil said he still hoped the dispute could be resolved without further disruption and strike action.
