Our Sector: The rocks and hard places of industrial action

The onset of industrial action across the Russell Group and former 94 Group was bound to pique the interest of the right wing press- and true to form over the past week or so there has been considerable pick up of young conservatives’ petitions and Tab stories on students demanding “refunds” for lost lectures.

My personal view is that it is pretty dispiriting to see some SUs not backing lecturers because of disruption. But academic staff shouldn’t be quite do quick to denounce the compensation call either. Students do have a legal right- albeit derived from consumer law- to redress if the provider doesn’t provide. And if we want UUK back round the table to help solve the dispute, we should be encouraging students to deploy those legal rights rather than mocking them.

Perhaps the most interesting aspect is whether and how OfS will choose to act if the dispute rumbles on beyond April 1st. In theory where HEFCE would undoubtedly been on the “side” of providers, OfS is supposed to champion the student consumer rights angle. This will be a crucial first test in determining whether the promises about not being captured by provider interest will come true.

Of course, outside of the politics of the issue (inc the line taken by SUs and where SUs may want to argue that students direct their ire- ie the management rather than the academics) it is highly likely that if the action is protracted students will approach us formally pursue one or the other of the two classic formal routes- academic appeals or academic complaints. Students’ Unions- particularly their advice centres- will want to be clear in their responses to students. And when I say complaint, I don’t mean the various round robin Open Letters to VCs asking them to moan at UUK. I mean proper, formal, academic complaints.

Academic Appeals In both cases the issues are dependent upon the wording of the relevant policy in a University but many Universities include industrial action as a circumstance that might affect the University’s ability to schedule, set or deliver courses and/or assessments, including marking of assessments. Ours does not.

Key to determining the approach (and then giving collective advice) is identifying the University’s definitions and its list of likely and unlikely reasons. Also key is being able to demonstrate that the action actually impacted on the student’s performance. In other words context is key.

Complaints When it comes to complaints there is a different picture, despite CMA guidance that almost all students have “consumer” rights. Almost all Universities have in their Terms and Conditions what is called a “Force Majeure” clause- a contractual provision that refers to an event or series of events outside the control of the contracting parties which prevents one of them from performing its contractual obligations to the other.

It usually contains a disclaimer which operates to protect the defaulting party from liability for non performance or late performance when events in question arise or continue. Typical examples of force majeure events outside of strikes might include natural disasters such as fire, flood, earthquake, bad weather conditions or other substantial disruptions outside of the parties’ control such as explosions, civil commotion, war or terrorist attack.

Here is the current Force majeure clause at UEA:

Neither party shall be liable to the other for any loss arising from matters outside the party’s control which could not have been foreseen or prevented even if the party had taken reasonable care. This includes (but is not limited to), strikes or other industrial action (within the University or at third parties) staff illness, severe weather, fire, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not), natural disaster, restrictions imposed by government or public authorities, epidemic or pandemic of disease, or failure of public utilities or transport systems.

Relying on a “force majeure” clause will not always work when defending a claim from a student- and reliance on a force majeure provision can be challenged in the courts- consumer protection legislation kicks in. This means that the university will need to demonstrate that the force majeure provision is fair and reasonable in all the circumstances- and as part of this assessment the court is likely to require the university to demonstrate that it has taken all reasonable steps to avoid the force majeure event and to mitigate its effects on the other student(s).

All of this means that student complaints (where complaints processes within a University and the OIA are supposed to have regard for consumer law and CMA guidance) might usefully challenge the “Force majeure” clause to get a sense of how Universities will seek to rely on it- and on what basis.

Did the University do all it could to avoid the strike? A classic challenge to FM when it comes to strikes is that disruption is not something which is outside the control of the university as the university could have negotiated a compromise or agreed to the demands of the strikers to avoid the risk of widespread industrial action. If the university can demonstrate that it did all that it reasonably could to avoid disruption, the courts are more likely to find that the provision is enforceable. Complaints should argue that the University did not do all it could.

The position is therefore interesting when it comes to a national dispute. Most Universities merely rely on UCEA and UUK to set out their case and to have the negotiation for them. It would be interesting to test whether that alone was enough to reasonably avoid disruption with its own students- particularly given the posturing, tactics and arguably hard line approach of UUK this time around.

Did the University do all it could to mitigate its effects on the other party? Any steps taken to minimise disruption would need to be disclosed to the courts if a challenge is made on the basis of fairness or reasonableness. Student complaints would need to argue that the University has not done all it could to mitigate the effects.

Obvious things a University could have done include re-staging lectures, swapping dissertation supervisors, recruiting extra markers to mark assessments, appointing new external examiners, rearranging assessments where possible and preventing unnecessary delays at all times. Should marking be delayed options available might include shifting graduation, or changing it to a mere celebration (if results not have been returned at that point), and awarding marks on the basis of provisional assessments.

The realities of the academic year and the tendency for those using their right to strike to only announce on the day mean that many Universities are likely to find getting cover for or rearranging teaching difficult. But if Universities are not able to demonstrate that they have taken all reasonable steps to mitigate impact, it won’t matter. SUs are uniquely placed to assess whether all reasonable steps were in truth taken.

Posted in Our sector.

Leave a Reply

Your email address will not be published. Required fields are marked *