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.