In our July bulletin we looked at performance management of academics in the context of preparing for the 2014 REF. Another issue facing universities is the process of selection of academics for submission to the REF, particularly in the context of HEFCE’s decision to remove 2* internationally recognised research from its funding formula. As a recent article published by the Times Higher Education Supplement highlighted, this means there is no reason for universities to submit 2* research to the REF, and indeed, many may choose not to do so. As a result, a number of academics now fear that they are “unREFable”, despite having produced research of an international quality.
This predicament raises a number of potential risks to the employment relationship:
- Employee morale
For most academics, submission to the REF does not only affect their funding, it is also perceived to be a reflection of their academic status. Therefore, where an academic is not submitted to the REF, despite having produced 2* research, he or she may feel unfairly treated. We understand that many universities are allowing the decision as to which academics should be put forward to the REF to be made at departmental level. This is likely to lead to inconsistency of treatment across the institution. It is not difficult to perceive a situation in which one department opts to submit 3* and above research only, whilst another might chose to submit research on behalf of academics with a 2.75* grade point average. Whilst it is a matter for each university to determine the approach it wishes to take in this regard, universities should be aware that an inconsistent approach is likely to have a detrimental impact on employee morale.
- Avoiding discrimination
As well as raising questions of fairness, universities need to be mindful not to act in a discriminatory way in relation to submissions to the REF. Individuals whose circumstances have significantly constrained their ability to produce four outputs during the publication period may be submitted with fewer than four outputs without any penalty in the assessment. Examples of such circumstances may be a period of maternity leave, part-time work, ill health or disability. Failure by universities to take such circumstances into account will be discriminatory. For example, the majority of part-time workers in the UK are women and so a requirement for four outputs with no account taken of part-time work is likely to impact on women more than men, and will therefore amount to sex discrimination. The consequences of acting in a discriminatory manner can be costly to an employer, as well as damaging to its reputation.
- Breach of contract
Universities should check academics’ contracts of employment to ensure that there are no express contractual provisions entitling them to have their work submitted to the REF. Universities should bear in mind that such a clause will not necessarily refer expressly to the REF. For example, the contract may simply provide that the university will use its best endeavours to assist the academic in procuring funding. Arguably, failure to submit an eligible academic to the REF would amount to breach of such a clause. Whilst a provision of this nature will be unusual, in cases where it does exist the academic in question would have a potential claim for breach of contract against the university if it does not comply.
Even where there is no express contractual provision, an academic might argue that there is an implied duty on the part of the university to assist him or her in securing funding. One can even envisage a situation where an academic may seek to argue that failure to submit his or her work to the REF (thereby determining that the academic will not receive any funding via this means) amounts to a fundamental breach of the university’s implied duty of trust and confidence because, without funding, the academic can no longer practice in his or her chosen field of expertise. In such circumstances, the academic could resign and treat him or herself as constructively dismissed. It would take a brave individual to run this argument, as the bar for establishing constructive dismissal is understandably high. Nonetheless, it remains an area of risk for universities.
- Head-hunting and restrictive covenants
It is possible for an employer to set out an express clause in an employee’s contract of employment which restricts the employee’s activity for a prescribed period of time following the termination of his or her employment. For example, a university might include a clause to provide that for a period of six months following the termination of an academic’s employment with the university, the academic may not undertake any work that is in competition with research being carried out by the university. The law provides that such clauses must go no further than is reasonable to protect an employer’s legitimate business interests. What is reasonable will vary depending upon the seniority of the employee in question, the length of the restriction and its geographical area to which it applies.
Until now, restrictive covenants of this nature have been almost unheard of in academic contracts of employment, as many universities believe that they are contrary to the principle of academic freedom. However, in preparation for the 2014 REF, many universities are head-hunting and recruiting individual (and in some cases whole teams of) academics with a view to boosting their funding. Arguably therefore, it may be time for universities to take a more commercial approach to the terms on which they engage valuable academic staff.
Clearly the 2014 REF looks set to present a host of additional challenges to universities looking to navigate employment relationships through difficult and, as yet, uncharted territory. We do not know exactly what issues will arise as a result of REF submissions, but careful consideration of the impact that determining submissions is likely to have on relations with academic staff will be key to pre-empting difficulties and putting in place a strategy to deal with potential areas of contention before they arise.