Publicly, universities’ focus is on the student experience and the standards of teaching. However when research status leads to associated funding, teaching posts may be at risk of redundancy.
The obvious incentive behind the drive for research excellence is the £1 billion funding pot that is distributed annually by the Research Excellence Framework but a university’s research status also impacts upon its ranking in the national and international league tables.
This focus on research puts pressure on university management to maximise the number of articles published in favoured journals. Unfortunately this may have employment law consequences. These consequences include:
- Trying to move staff onto teaching-only contracts by agreement or otherwise;
- Targeted redundancies;
- Increased use of fixed term posts; and
- Risks of constructive dismissal claims if there is an adverse impact on morale.
The focus on research may also have a bearing on the standards of teaching with staff (which could also lead to litigation in a limited number of cases) focusing instead on publishing articles and individual research projects. On the other hand, it could be argued that having a renowned researcher on the staff is a big draw for potential students and that researching and teaching are inextricably linked in the tertiary sector, rather than two distinct career paths.
Changing employees’ terms and conditions
It can be difficult for an employer to change an employee’s terms and conditions once these have been agreed, particularly if the changes are to the employee’s detriment, or perceived detriment. This could apply if a university is seeking to force an employee onto a teaching only contract, potentially with a reduced salary, because they have failed to secure research funding.
The employer has three main ways of changing the employee’s terms and conditions (subject to any contractual clause permitting the employer to make changes without the employee’s consent, though it is questionable how enforceable these clauses are in relation to anything other than minor changes):
- Seek the employee’s express consent to the proposed changes. This is by far the simplest option but, for changes to the employee’s detriment or perceived detriment, it is unlikely that the employee will agree unless they are receiving a benefit in exchange for doing so (for example, a salary increase or a one-off payment).
- Unilaterally impose the changes and seek to rely on the employee’s conduct to demonstrate acceptance. Technically, this will be a breach of the employee’s contract and the employer will be at risk of a claim. In these circumstances, the employee could choose to:
- accept the breach (depending on how serious a breach it is), resign and commence a claim for constructive dismissal;
- refuse to work under the new terms; or
- work under the new terms under protest and commence a claim for breach of contract and/or unlawful deduction of wages. If the employee works under protest but no claim is forthcoming, there is a strong argument that they will have accepted the new terms if they do not resign and continue to accept their salary.
- Dismiss the employee on their current terms and conditions and seek to re-engage them on the new terms and conditions. This leaves the employer at risk of an unfair dismissal claim, if the employee refuses to sign up to the new terms and conditions and so they should be satisfied that they can rely on one of the potentially fair reasons for dismissal before taking this step (such as “some other substantial reason” if there are sound business reasons for making the proposed changes).
There are limited ways in which an employer can lawfully dismiss an employee, one of which is redundancy. However, in order for a redundancy to be a lawful dismissal, a fair and reasonable process needs to be followed and a genuine redundancy situation needs to exist (rather than any other form of internal re-structuring, for which an employer would have to rely on “some other substantial reason” for the dismissal to be fair). Normally, for a process to be considered fair, an employer must have:
- turned their mind to identifying the appropriate selection “pool” of employees, bearing in mind the work the employees in question actually carried out and whether or not employees’ roles were interchangeable;
- considered and applied selection criteria fairly to each “at risk” employee. The criteria should be objective, capable of independent verification and should not be discriminatory;
- undertaken a period of consultation with all employees “at risk” of being made redundant;
- considered whether or not there are any alternative vacancies for selected employees; and
- considered whether or not there are any alternatives to compulsory redundancy.
Bearing the above in mind, targeting employees for redundancy on the grounds that they have not obtained research funding or are not focusing enough on research could be difficult to justify in law.
The first hurdle for an employer attempting to make an employee redundant in these circumstances to overcome is to show that this is a genuine redundancy situation and not just a restructuring. For it to be a redundancy there must be a business closure, a workplace closure or a diminished need for work of the particular kind that the employee carries out. An employer would therefore have to show that there is a diminished need for teaching staff at a university, which does not appear to be straightforward.
If this first hurdle is overcome, the employer will then need to consider how and if they can rationalise including only those employees who do not have research funding in the selection pool for redundancy. Arguably, there is a large degree of overlap between the roles carried out by those with and those without funding and so it may be that all teaching staff within a particular faculty should be pooled together, unless an employer can identify an element of the role specific to those with research funding that those without cannot do.
If all teaching staff within a faculty are pooled together, an employer will need to create selection criteria that are non-discriminatory but will allow them to fairly justify selecting an employee without research funding over one with this funding for redundancy, in order for the redundancy to be ‘fair’ legally. While dismissing an employee for not receiving funding to carry out research may be unfair, you could include an employee’s involvement with research within the selection criteria, as one factor to be looked at when considering redundancies, depending on the specific circumstances. We would be happy to provide guidance as to what criteria could be used.
On top of this, as with all redundancy processes, a period of consultation should be conducted, where those “at risk” have the opportunity to present their views and any alternatives they have, and these should be considered by the employer.
This is not to say it is impossible to lawfully make redundancies in these situations but it is saying that it is not as straightforward as it may appear on the surface, with a number of considerations coming into play.
If an employer is planning on restructuring any departments or looking at making redundancies in circumstances similar to these, they should seek advice before commencing the process.
Fixed term contracts
The use of fixed term contracts could get around the issue of trying to force employees who do not obtain research funding onto a different type of contract, after the event.
A fixed term contract would allow an employer to employ an individual to carry out a specific research task only, for a set period of time. These contracts are also useful where funding for a post comes from an external source, such as the Research Excellence Foundation, as an employer can limit the length of the contract to the amount of time the funding is in place. If the funding is not renewed the following year, the employer can simply not renew the fixed term contract.
However, there are potential issues with the use of fixed term contracts on a continual basis. For example, individuals employed on these contracts do still obtain the right to pursue an unfair dismissal claim (provided they have the minimum qualifying length of service, which is two years for all individuals employed on or after 6 April 2012). Therefore, once an employee obtains the relevant length of service, it would still be potentially problematic to target these employees for redundancies, if the only basis for this is their fixed-term status.
Employers considering the use of fixed term contracts should also be aware that once an employee has been working for four years or more on successive fixed term contracts, they are automatically deemed to be a permanent employee unless the continued use of fixed term contracts can be justified.
One other potential issue employers should consider in these circumstances is the risk of disgruntled employees resigning and pursuing a claim for constructive dismissal. In order for an employee to raise and succeed with a constructive dismissal claim, they must resign and demonstrate that they were entitled to do so because of the employer’s conduct. If they can show this, they will be treated as having been dismissed by an employment tribunal and the employer will then have to show that this ‘dismissal’ was fair in the circumstances (in the same way that they would have to for an ordinary unfair dismissal claim). The employee could also pursue a claim for wrongful dismissal for payment equivalent to their contractual notice period, if they resigned without notice.
These cases are more likely where morale amongst employees is low or where there is a perceived unfair hierarchical nature in the workplace. This could apply where those who do not secure research funding are forced into positions with less perceived esteem, particularly if there is a pay differential, or where there is pressure on employees to write for certain journals, at the perceived expense of teaching standards.
As with all these potential issues, the best way to avoid claims of this sort is to seek agreement to any proposed changes, consult fully if considering redundancies or any restructures and identify a real business need to make the changes being proposed. If an employee understands and accepts the rationale for the changes, and does not perceive them to be personal, they are more likely to agree to them (or at least less likely to bring an employment claim even if they do not agree to them).