As universities and other higher education institutions will be aware, the Student Group Claim is already seeking compensation for students from leading universities for disruption to academic degrees caused by Covid-19.
The marking and assessment boycott and strikes by university staff look like they will lead to further claims, possibly as part of collective claims, but also from individual students. These could easily cover disruption to studies from both strike action and action short of a strike (ASOS).
Until recently ASOS was perhaps less known than out-and-out strike action, but it can have a significant impact on any workplace. For the university sector it is particularly disruptive given that one aspect of ASOS is the marking and assessment boycott. This could disrupt students’ progression, and even prevent graduation. However, as the UCU (University and College Union) says, ‘ASOS allows us to withdraw our goodwill in a way which legally protects us from reprisals.’
Given that ASOS is becoming a more regular feature within the education (and indeed other) sectors, all organisations should now have contingency plans whether or not they recognise a union.
While this may be a trite point, if staff are on strike, they do not get paid. Pay for staff taking part in ASOS is more complicated.
If the ASOS is a breach of contract, a university or other employer could argue that those employees taking part are not performing their contractual duties. The employer then has a choice to either accept partial performance and make a proportionate reduction in pay, or to require the employees to stay away from work and not be paid at all until they agree to comply with their contractual terms in full.
As has been seen with the marking and assessment boycott, seeking not to accept partial performance of the employees’ duties, and not paying at all, can be controversial. Instead, many employers have sought to make a proportionate deduction from pay. However, if the staff are carrying out their minimum contractual duties (ie they are working to rule), it might be that staff remain entitled to full pay.
For many employers, before deciding what to pay, it is necessary to consider the exact contractual terms of each member of staff to assess if they are still performing their contract. If employees are fulfilling their duties, both in terms of duties, including teaching and research, and working their contractual hours, an employer cannot deduct any pay. However, where an employee is still working their contractual hours, but prioritising one part of their work, for example, undertaking research, yet leaving no time for other contractual duties eg teaching, a pay deduction may still be lawful.
Operationally, many employers seek to deduct a flat percentage of pay for any employee taking some form of ASOS. However, if an employer is looking to deduct pay, it is important to be very careful about how much to deduct. Many employees who are still performing some, or even the majority of their duties, will argue a blanket deduction is too high. Also, staff participating in ASOS might hold a whole range of duties, and have varying responsibilities, such that the impact of some forms of ASOS have a very different effect on various staff.
The safest approach is to calculate the percentage appropriate for each individual member of staff and only apply that deduction. However, applying different deductions on a person by person basis may be cumbersome or even unworkable for an organisation employing large numbers of staff on different contracts.
Many employers would prefer to take a more cautious approach, and make a blanket deduction, but at the lowest percentage for any member of staff. Others are only making deductions for impactful types of ASOS but, again, this is cumbersome, as to do this they must establish which staff are participating in those ASOS, something staff are not required to tell their employers in advance.
Communication with students is critical. Students must be aware of the plans being made, the contingencies put in place, and any likely impact on their education and the reasons for it. Students should be signposted to support, as well as informed of disruption.
If students are dissatisfied with their institution there are two main external routes to achieve redress: a civil claim, or the Office of the Independent Adjudicator (OIA). Students can only take their complaint to the OIA if they have exhausted their institution’s own complaints process and been provided with a ‘completion of procedures’ letter.
The OIA has already considered a number of cases in relation to alleged lost opportunity – both in relation to industrial action, and in connection with the Covid-19 pandemic – and it has published a series of case studies on its website. In one such case study, the OIA noted that the provider had taken reasonable steps to ensure that students were able to achieve the required learning outcomes so that they could progress with their studies. However, communication with students had not always been clear. Some students were not told about the alternative teaching sessions or when they were taking place, and so they missed them. The OIA recommended that the provider should pay the student compensation for the teaching that had been missed, which it assessed at a little under £600.
The OIA will consider a university’s actions in ensuring that students have the chance to make up for any lost opportunity, including a loss if they are unable to graduate. Students will need to be told what is happening so that any perceived loss of value is managed. This is particularly the case if a student may, as a result of ASOS, later argue that the institution has been unable to provide elements of a course which they considered material to their decision to enrol.
Many students may argue that there has been a breach of contract but to do so they will have to establish what the contract actually covers. Is it the delivery of a set number of teaching hours by way of lectures, tutorials or seminars, or have more explicit promises been made in prospectuses, or online? Institutions should use this as an opportunity to ensure that these materials are consumer-law compliant and that they are confident they can deliver what was promised. Universities are likely to be at risk if teaching is sufficiently disrupted or the student loses the chance to graduate and start the next stage of their life - either studies or work after graduation.
To defend claims, institutions will have to show that they took all reasonable steps to deliver the material requirements of any contract. If they cannot do this, they may be left to argue either that the contract is frustrated, or they could seek to rely on a clause within the contract for force majeure. However, the OIA has made it clear that seeking to rely on force majeure clauses in a student contract may be unenforceable given the nature of the relationship, the fact students are consumers, and the imbalance of power between students and their institution; and the doctrine of frustration seems unlikely to apply to an industrial relations scenario.
Institutions must ensure that they document the steps taken to deliver the contracted services in order to avoid, or at least limit, the scope for a successful breach of contract claim.
While industrial action continues universities also need to be mindful of their reporting requirements to OfS, if there may be an impact on compliance with any conditions of registration.
Sponsored students who plan to switch into the Graduate visa route may be impacted if their results are not confirmed before their current immigration permission expires. It is understood that the Home Office plans concessions to address this problem. These are likely to include holding Graduate visa applications until the marks are conferred, or allowing international students to exceptionally extend their student visas whilst exam results are awaited. We await further details of this. For further information please contact our immigration team.