Strike Action 2019 - What Are the Legal Implications for Universities?

On 9 September, UCU opened another industrial action ballot for 69 institutions over Universities Superannuation Scheme (Scheme) pensions, as well as a separate ballot for pay, workloads, casualisation and equality for these and a further 78 providers. Both ballots are scheduled to close at the end of October.

Strike action is not inevitable but significant obstacles to an agreement being reached by UCU and employers remain, and the stakes are potentially high. The strike last year is thought to have been unprecedented in scale with over 40,000 staff foregoing 14 days' pay and thousands of students losing teaching and learning time. A further UCU strike scheduled for April 2018 was only averted after employers, represented by UUK, agreed to propose a joint panel of experts to look at the Scheme's structure valuation, a gesture that ultimately failed to deliver what was sought.

UCU's demands include the reformation of the Scheme's operation before it is revalued in 2020, and a cap on member contributions to a maximum of 8% of salary - the so-called 'no detriment' requirement. In response, UUK proposed a 9.1% rise, which has been rejected by UCU.

For there to be further industrial action, the Trade Union Act 2016 requires a majority turnout of those balloted, which was not achieved by UCU in January 2019. However, if it is assumed that there will be sufficient interest and support for one or both of the latest ballots, various consequences for institutions are possible.

Contractual Issues

Legal action against universities by students would be brought in contract, and reflect the requirements imposed on service providers by the Consumer Rights Act 2015. While consumer law obligations apply in respect of all students, the specific circumstances of each case is material to the strength of a compensation claim. There is still very little consistency in the content of student contracts between institutions (and for different cohorts within an institution). The impact on each student will also vary, depending on the programme being studied and the stage the individual had reached when the strikes took place.

One consequence of the strikes is an increased awareness of the risks for institutions of seeking to rely on 'force majeure' clauses. Such clauses have long been found in most commercial contracts and are designed to limit or exclude liability if a party is prevented from or delayed in performing its obligations.

Originally devised to cover 'acts of God' considered to be beyond the parties' control such as fires and floods, these clauses also often include industrial action. It may be arguable that strike action is beyond the control of a particular university, but force majeure clauses may be challenged as unenforceable if they are considered too wide to be fair and reasonable in the circumstances.

In practice, this means that whether or not a provider has a force majeure provision in its contract, it will need to show that it has taken reasonable steps to avoid or minimise the impact of the intervening event. In addition, it is essential that any exclusion of liability clause is clear and brought to the attention of students in advance.

Complaints

The OfS' position remains that students who believe their rights have been infringed as a consequence of strike action should raise the issue first through their institution's formal complaints procedure. If the matter is not resolved to their satisfaction, they should escalate it in the usual way to the Office of the Independent Adjudicator (OIA).

Approximately 50 of the 1,967 complaints received by the OIA in 2018/19 were strike related. The findings and recommendations provide a useful insight into what steps are considered to be reasonable and proportionate responses.

A wide range of institutions were found to have recognised the detrimental impact of lost teaching and learning time, and to have taken steps to minimise disruption and adverse consequences for those affected. Where institutions communicated with their students clearly and made modifications to their assessment regimes, complaints against them were generally not upheld. Other steps acknowledged to be best practice include ensuring students are not assessed on missed topics, extending deadlines, offering additional tutorials and making arrangements for module leaders and lecture materials to be accessible remotely and during holiday periods if necessary. Goodwill (ex-gratia) payments are recognised as a remedy suitable for distress and inconvenience. In addition, students should have been signposted towards, and remained able to access, support services throughout the affected period.

Taken individually, such measures are not sufficient but in combination they may be accepted as evidence that an institution appreciated the predicament and took adequate steps to put things right.

Of those complaints that were deemed partly justified, findings included that:

• universities should consider the course programme and the student's year of study when assessing the adequacy of their contingency arrangements
• failure to direct a student to the correct procedures or to follow those procedures properly is not acceptable
• whilst providers are not expected to deliver like-for-like replacement services, they are required to respond to a student's complaint in a manner that reflects individual circumstances

Regulatory Oversight

In the wake of the 2018 strikes, the OfS indicated that it would not become involved in the substance of the dispute or advise individual cases and declined to publish its policy on responding to industrial action. It did, however, emphasise that its remit includes seeking to mitigate the impact on students and indicated that further industrial action would be likely to trigger its regulatory powers.

Adherence to consumer protection law is a condition of ongoing registration and this extends to providers being able to show how they have taken reasonable steps to reduce any detrimental impact on teaching, learning and assessment. Examinations and assessments are to be a focal point, and institutions are expected to be mindful of the impact on particular groups, including international students paying higher fees.

Now that all of the OfS's monitoring and enforcement powers under HERA 2017 are in force, it is more likely that providers found to have fallen short in protecting their students' interests will be subject to regulatory intervention. Certainly this is the impression given by the Strategic Guidance letter sent to Sir Michael Barber by the new Secretary of State for Education Gavin Williamson on 16 September, which asks that the OfS prioritises work supporting students as empowered consumers, and encourages it to exercise its powers boldly.

Summary

Further strike action by UCU members remains a distinct possibility during the next few months and could have a significant impact on both students and higher education providers.

The risk of breach of contract claims cannot be eliminated but providers would be well-advised to focus on mitigation measures whether or not their terms and conditions include a force majeure provision.

The OIA's treatment to date of strike-related complaints further reinforces the importance of minimising disruption and ensuring that remedial measures reflect individual student circumstances. Now that the OfS is fully operational it is more important than ever to protect the quality of the student experience and to demonstrate sufficient flexibility to minimise the impact of events beyond an institution's control.

For specialist advice on how to manage strike action affecting your university, please contact Kris Robbetts in our Higher Education team on 0117 314 5427, or complete the form below.

This article first appeared in University Business.