A non-lawyer’s guide to deductions from pay for taking ASOS: marking boycotts and not rescheduling classes

In a departure from the usual blather on here about protests and public order law, here I set out a short post about employment law and human rights. Specifically, it’s aimed at non-lawyers who’d like to understand the general arguments I make here in the Industrial Law Journal and in this blog here but in the context of the current UCU dispute. The argument is this: university employers who deduct or even threaten to deduct 50%-100% of pay for anyone on a marking/assessment boycott are acting unlawfully by making disproportionate deductions from pay. For those interested in the full argument, it was published earlier this year on-line and in hard copy at the start of this week in the Industrial Law Journal. There is a shorter one here, on which the article was based, and also this by Professors Bogg and Ford from the Bristol Law School. I am not an employment lawyer – they are, and very well respected and eminent ones at that – but a human rights professor with an interest in this from that angle.

1. The historic common law position – that is, judge-made, not in an Act of Parliament – is that any strike is a breach of contract. There is certain protection for unions during a strike if it’s been properly called, and for workers facing the sack but technically, in law, a worker is in breach of contract going on strike. My article does not challenge this.
2. It is also the historic common law position that anyone taking action short of contract – ASOS – by, for example, working to contract/working to rule is also or may well be (strange as this may sound to non-lawyer’s ears) in breach of contract. This is because not only are there express terms of any employment contract, but also implied terms – that is, not written down and so not even agreed specifically. One of these is what’s termed the duty faithfully to serve your employer, not acting to disrupt their business. Again, the article does not deal with that.
3. It is also the historic common law position that an employer, faced with a worker who does not perform their contract in full, and is thus in breach of contract, has a choice. Until challenged, this remains “good law” – so in legal terms, binding on courts and a rule that employers are entitled to work to. It is a legal authority dating back to the late 1980s to two decisions, one from the Court of Appeal and one from the House of Lords, the UK’s highest court, now renamed/replaced by the Supreme Court. For those interested, the cases are Wiluszynski v Tower Hamlets LBC in 1989, and Miles v Wakefield BC in 1987.
4. That choice is this. They can disregard that non-performance, that breach, and the contract continues as before. They must pay full salary whatever lesser performance the worker offers, no matter how large or small the ASOS is. Alternatively, they can make clear in writing in advance that they do not wish to accept any partial performance – no matter how small or inconsequential its effect, no matter how little work is lost or is needed to be made up after the dispute ends. If they make clear that for them it is, full performance of all the demands of the job or none, then they do not need to pay at all for the duration of the dispute/duration that you do not do your job in full. Anything you do after that notice is, in law, deemed to be voluntary.
5. To give some flavour, that Court of Appeal decision established that a local council official who had not answered residents’ queries for five weeks of a dispute was not entitled to any pay for that period, despite it taking him only two-three hours to make good the lost time after it ended.
6. The argument I make is that now, for a court to follow that line of case law would be wrong as a matter of law itself. The argument is that a legal rule that allows an employer to deduct in full despite only losing the value, say, of a few hours’ work – or in the current marking boycott case, a handful of days – is a rule that breaches human rights laws. I’ll set it out here in stages.
7. First, I need to show that such a rule is a breach of the UK’s human rights law, laws contained in the Human Rights Act (HRA) 1998. This is relatively straightforward. Article 11 of the ECHR, which is that the HRA puts into legal effect in the UK, guarantees the right to associate. There is now a long and strong line of case law, both in the UK and under the ECHR, that this include the right to strike and to take industrial action. That being so, a legal rule that makes it (much) harder to strike or take action constitutes an interference – in legal terms – with the exercise of that right. Not all interferences with the exercise of a right are unlawful – only if they are disproportionate. A rule which allows an employer not to pay at all for x weeks despite losing only a small-ish % of the value of the work in that time must be disproportionate. A legal rule which allowed an employer to deduct for the time lost or time needed to recover the lost work probably would be proportionate.
8. Having established that a disproportionate deduction constitutes an interference with or breach of my human rights, the next stage is to show how that would be given effect, how it would be enforced.
9. One seeming problem is the case from 2007 of Spackman v London Guildhall University, exactly on point: a 30% deduction for marking boycott. The judge there decided this was proportionate but did so, as I argue, without any acknowledgement that the lecturer’s human rights were at play and at stake. Instead, the judge’s decision is that as a matter of contract law, there is no duty to pay proportionate salaries. While it seems a case that suits employers, my argument is that it is not in fact ‘on point’ at all.
10. Primarily, anyone on a marking/assessment boycott would be able to argue that their university, as (again in legal terms) a “public authority” under the HRA is directly bound by the obligations contained in that Act. This means it is by law under a duty not to come to decisions that restrict our rights disproportionately. Translating that to our instant dispute, it means a university is under an enforceable duty (actionable by any employee) to decide only to dock pay in a proportionate amount, to reflect the time lost etc. Put another way, it is unlawful as a matter of UK human rights law to make anything other than a proportionate deduction from pay following ASOS or marking etc boycott.
11. I also think it is a breach of its HRA duties to threaten 50%-100% pay deductions, as that constitutes what lawyers tend to refer to as a chill – even if there is no intention ever to deduct such sums, a management email might dissuade colleagues from joining the boycott for fear of the deduction, a deduction which (if I am right) would be unlawful.
12. If I am right on the above 7-11, then one route to sort the matter would be to take a university to court without needing to wait until deductions kick in, by means of challenging its public law/HRA decision – the email threat – by judicial review.
13. Another route to the same eventual end (or if I am wrong about a university’s human rights status, or if an employer is an obvious private sector employer) would be to sue under the contract for the loss of salary, for the deduction. This is conceptually a bit harder but, again in brief, involves arguing that all employment contracts should be interpreted, should be read as including an implied term (that is, one not actually agreed by the parties): not to act in a way that disproportionately interferes with a worker’s human rights. There are a few steps to this but none is insurmountable. The courts have been moving towards accepting general duties on both sides, what’s called “mutual trust and confidence”. This is by now very well-accepted by courts, by employers so the only question is what does this mean, what is its scope? It is not a massive leap, I argue, for that mutual duty to ‘make the contractual relationship work to encompass a more definable duty to respect an employee’s human rights. If so, all employers – public or private – find themselves bound by this new duty, a duty not to act disproportionately towards them in the workplace if their HRA rights are at stake…as they are in this dispute.
14. I hope that explained the argument a little. To be clear: the law as settled currently in or by the courts allows for 100% deductions. I accept that is the current state of the law in England and Wales. That caveat is there as I do not profess any knowledge on human rights/employment law in either Scotland or Northern Ireland. My argument, which I know others in the field accept, is novel. It would need a court case to have it accepted, assuming university employers do not simply roll over and accept the word of some of the UK’s leading human rights and labour law professors…which I’d accept is unlikely.

SUBMISSION TO DEPT. FOR BUSINESS INNOVATION AND SKILLS – REFORM OF INDUSTRIAL PICKETING LAW

CONSULTATION ON TACKLING INTIMIDATION OF NON-STRIKING WORKERS

DEPARTMENT FOR BUSINESS INNOVATION AND SKILLS

TRADE UNION BILL 2015

I am Professor of UK Human Rights Law in the Law School at the University of East Anglia (UEA), a Chair I to which I was first appointed in 2012. Over the past twenty years, I have written extensively on protest/public order and the law, including the main academic treatise The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Act Era (Hart Publishing 2010, )as well as on the Human Rights Act and on policing more widely. I should also declare an interest as a member of the University and College Union (UCU), and Vice-President of my university branch. I am writing in an academic capacity.

I wish to make only a short comment on the plans to regulate industrial picketing yet further. In my view, the consultation document suffers from two defects: first, it fails to identify with enough precision why further legislation is needed (though I accept that consultation responses may do so) and, secondly, it is silent on what must (obviously in my view) be the knock-on consequences for the right to protest more widely. It is not an in-depth dissection of the proposals (such as offering the view that democratic accountability and reputational protection – para 26 – are matters surely for a union to opt for, not to have foisted upon it?).

Before doing so, it is surely worth noting some key points from the Article 11 jurisprudence of the Strasbourg Court, the European Court of Human Rights:

• The right to “peaceful protest” is not equated with lawfulness; a protest can be unlawful – say, for breaching permit requirements – but remain peaceful. The consultation document in para 8 seems to conflate the two, wholly incorrectly.

• There is no such concept as an unlawful or unpeaceful assembly; it is an individual right and, as such, the right is not lost by the (violent) behaviour of others; it is lost only if the person is (or perhaps intends to be) violent

“The guarantees of Article 11 of the Convention apply to all assemblies except those where the organisers and participants have violent intentions or otherwise deny the foundations of a “democratic society”… Any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities – do a disservice to democracy and often even endanger it… If every probability of tension and heated exchange between opposing groups during a demonstration were to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views on any question which offends the sensitivity of the majority opinion. The Court would add that a demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. (Faber v Hungary [2012] ECHR 1648 [37]-[38])

• The right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society (Promo Lex v Moldova [2015] ECHR 216 [21])

• Where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (Oya Ataman v Turkey [2007] ECHR 493 [42])

• If every probability of tension and heated exchange between opposing groups during a demonstration was to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views (Öllinger v Austria [2006] ECHR 665 [36]

 

1. What is the gap?

The consultation identifies (para 4) various unsavoury incidents said to have occurred on picket lines, noted in the Carr Report of 2014. Bar the last, photo-shaming of non-strikers, it is hard to see why the police would not be able to arrest anyone reasonably suspected of committing them. Each is (either clearly or more than likely) a free-standing crime, as the consultation points out later on p.7.

What more is planned to be added, and why? The police can perfectly properly arrest. If they have no evidence or indeed (para 8) “no direct evidence of criminal behaviour” then creating a greater range of offences will either not solve the problem or will be so widely drawn as to capture a whole host of obviously and clearly legitimate activity. In short, as I comment in my book, the problem is less likely one of insufficiency of laws but inadequacy of enforcement; the latter is not solved by dealing with the former.

There is nothing that should prevent officers both (i) arresting individuals for ostensible criminality and (ii) facilitating the right of every one to protest peacefully something which the document seems to presume is mutually exclusive. They are not and indeed it could be argued are actually mutually reinforcing. Further, in general terms arresting those who are violent raises no Art 11 concerns since such an individual has removed themselves from the scope of the right by ceasing to be peaceful, while arresting those who are “merely” intimidating non-strikers may likely be a proportionate response and so protected under Art 11(2).

It is, in other words, hard to see what a new offence of intimidation on the picket line would add: using threatening or abusive words causing another to fear immediate unlawful violence is already an offence under s.4 of the POA 1986, whereas if someone were “merely” harassed or alarmed by such language or behaviour, that too is an offence but under s.5. It would have to quite low level intimidation – and therefore (arguably) not actually intimidation at all or certainly not intimidation that the law should punish – for that test not to be met.

It would be hard to justify punishing such language as being a proportionate restriction on a striker’s free speech rights (under Art 10) given, in the words of Lord Justice Sedley in what is a well-known case of DPP v Redmond-Bate [1999] EWHC Admin 733 at [20]
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”

2. Wider ramifications

What is lacking in the consultation document is any analysis or even recognition that – where change is planned for what it refers to as “leverage” tactics i.e. away from the place of work – either (a) these are already regulated quite heavily by the general law relating to protest or (b) there would need to be tandem schemes, for industrial protests on one hand and for other protests on the other or (c) that the planned changes for industrial protests are a portent for change more widely.

Developing all that a little:

Very few consider the current framework to be especially pro-protest; indeed the government (albeit as part of the 2010-2015 Coalition) has previously pledged to restore the right to non-violent protest, indicating surely there were problems? The legislation passed in that period – removing “insulting” from s.5 and altering the position for protests around Westminster – has not, I would suggest, done a great deal and certainly not as much as required. The law and, more importantly, (policing) practice largely does not tend to favour protest, certainly not forms of protest outside the archetypal norm of marching and assembling.

It is hard to see quite why new and greater restrictions are needed but only for industrial protests away from the picket line. There will always be consequential harm for third parties, or the risk of it at least – the fact that it arises in the context of an industrial dispute does not seem to alter the underlying dynamics sufficiently.

Taking that second point, a few seconds’ thought would surely be adequate to dispel any idea of trying to initiate a regulatory scheme solely for industrial protests. There is under the Public Order Act 1986, no current need to notify the police of anything unless a public procession (march) is being planned; static assemblies are immune from that six-day prior notification rule. There is literature indicating that schemes of notification ultimately often become ones of authorisation, and where organisers concede more in negotiations “bargaining in the shadow of the law”. If we wish to tie the courts up with litigation (one avenue that springs to mind would be an Art 14 challenge to the differential rules as between industrial and non-industrial protests, something where the onus would be on the government to show a proportionate link to the different harm suffered in industrial disputes), to provide academic lawyers with hours of fun and to render the police in stasis as they worry about definitional scope, then that would be the route to go. If not….

The fear that this would lead, by design or default, to greater restrictions on the democratic right of us all to protest, to dissent, and to put across an alternative point of view, even forcibly – something we must surely acknowledge is a public good, irrespective of the temporary, perhaps directed harm suffered privately? – must be a real worry. It is something the Department has simply failed, entirely, to address. An urgent response on that seems to me an eminently reasonable demand.

David Mead, 8/ix/15
Professor of UK Human Rights Law,
University of East Anglia,