Docked Pay, No Way? Legal aspects of indefinite pay deductions for strikers

by | 28 Feb 2022

Following the announcement by certain Universities that they will dock staff 100% of pay if they refuse to reschedule strike affected work, an online #OneOfUsAllOfUs teach-out is being organised to explore the legality of such draconian policies. It will happen at 4.30-6pm on Tuesday 1 March with guest speakers including Professor Diamond Ashiagbor (University of Kent, Labour Law) and Professor David Mead (University of East Anglia, author of ‘Disproportionate deductions from wages and industrial action’) 

Please register here. All welcome, no prior legal knowledge required. The zoom will be open from 4pm.

This teachout draws on rich legacies of critical legal studies and community self-education (see here, here, here, here and here) to provide a space for ‘doing law otherwise’. We will bring trade union members, academics, lawyers and students together to examine the (il)legality of university management’s new strategy of threatening to dock 25-100% of pay for action short of a strike (ASOS), and to discuss ways of countering such an impoverishing and punitive strategy for all of us. 

Universities such as QMUL are threatening to make ongoing 100% pay deductions for different kinds of ASOS, including for apparent failure to reschedule, or reload materials for, educational activities cancelled due to strike action (see further here and here).  Staff taking industrial action are being told that they will not be paid at all on an ongoing basis unless they declare themselves willing and ready to reschedule activities lost to strike action. This threat is an attack on the right to strike, one which is distressing staff who rely on their wages to put food on the table. Such rescheduling is also likely to be impracticable and could exacerbate existing inequalities and stresses for staff and students.  These are the same staff who have kept the university going during a pandemic, who are taking action to make the university a more equal place, and who have already given up wages, time and energy in order to support each other, and their students, through strike action. Students have been writing to senior management to express their concern at the disruptive consequences of management’s policy, including by objecting to rescheduling and the disrespect of staff’s rights and students’ timetables. 

The FAQ document shared internally by QMUL management provides: “Deductions will be made for the following forms of ASOS, on the basis that they are a breach of contract because you are not ready and willing to undertake your contractual duties.  This is not an exhaustive list:

  • not rescheduling and conducting lectures, classes or any education activities.
  • removing uploaded materials to, and/or not sharing materials related to, lectures, classes or any other planned education activities that will be, or have been, cancelled.
  • not undertaking core activities related to student support, including academic advising.
  • not undertaking all marking and assessment activities.
  • not covering for absent colleagues if this is typical practice for you to do so.”

The guidance provides further: “100% of pay will be deducted from staff undertaking industrial action (including ASOS) if all planned educational activities are not undertaken. If planned educational activity is not delivered because of strike action or ASOS, 100% of pay will be deducted from the member of staff until that educational activity is rescheduled within timescales directed by the Head of School/Institute or their appropriate delegate.”  

Non-strikers as well as strikers are potentially captured by this policy since non-strikers could be asked to ‘cover for absent colleagues’ and could believe that doing so would be damaging to the trusting relationships needed for education provision. ASOS which consists of ‘working to contract’ and not engaging in voluntary activities will not be met with 100% pay deductions.  

University management believes it has the legal power to make 100% pay deductions on the basis that it can reject ‘partial performance’ of an employee’s contractual obligations.  However, we know that the law is not so clear-cut, and there are strong grounds to believe that a court would find such threatened deductions unlawful.   

First, this is novel legal terrain and there are questions to be asked about 1) whether rescheduling actually is a contractual obligation and relatedly 2) whether a university employer has the legal power to oblige rescheduling given its replacement of activities lost to strike action.  There are also questions to be asked about whether rescheduling and other related actions actually achieve the policy objective of ‘protecting student education’, as claimed by university management, given their likely impracticability and burdensome effects.    

Second, even if these activities are contractual obligations and the employer has the power to reject partial performance of contractual obligations in common law, there are arguable grounds to distinguish leading precedent such as Wiluszynski v London Borough of Tower Hamlets [1989] ICR 493 from this situation, and to believe that QMUL is not actually rejecting partial performance in substance.  There are also several authorities including Miles v Wakefield Metropolitan District Council [1987] UKHL 15 that uphold the rule that any deduction of pay must be proportionate to the work lost.  100% pay deduction on an ongoing basis for a failure to reschedule a one-hour class while continuing to deliver other work seems clearly disproportionate on its face 

Third, as Mead notes here, human rights law applies and any court adjudicating these issues would have an obligation under s 6 of the Human Rights Act 1998 to interpret common law so as to give effect to Convention rights, including the freedom of association and the right to strike under Article 11 ECHR.    

Therefore, it seems to us as legal academics and members of UCU, that there is at least an arguable case that this policy of 100% pay deductions for action short of a strike is likely to be found unlawful in a court of law, even if this area of law is uneven, complex, multi-faceted and fast-moving. This seminar invites participants and guest speakers to address aspects of these legal issues with a view to building a clearer legal picture of the terrain and of the possibility of challenging and changing such impoverishing and punitive policies for all of us, everywhere.  

Organised by Law members @qm_ucu including Ruth Fletcher, Neve Gordon, Jeff Kennedy, Tibisay Morgandi, Eva Nanopoulos, Isobel Roele, Angela Sherwood, and Leila Ullrich. Contact dockedpaynoway@gmail.com for more information.  

For more info on Part One see here and here

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