The vote by UCU members in favour of industrial action earlier this week means that strikes or action short of a strike can start as early as the beginning of November.
As with the two hour strikes earlier this year, having checked the accuracy of notifications received from UCU a key issue for institutions to determine will be the approach to adopt to pay deductions for striking staff. It is important that this approach is communicated clearly to staff in advance of any industrial action, even if this involves simply repeating the position adopted previously.
Where an employee refuses to work for part of a day – such as a two hour strike – the issue is treated as one of partial performance. Institutions can refuse to accept partial performance and, in principle, potentially withhold a whole day’s pay in these circumstances. In other words, the withholding of pay is not necessarily restricted to the proportion of work not being performed. However this is a complex area of law and specific legal advice should always be taken.
Each employer’s approach to this issue will depend on its strategic and tactical aims, aversion to risk, and the likely impact on industrial relations. Deducting a full day’s pay for a strike which lasts for less than a day will be viewed as a robust step and should not therefore be taken without due reflection. The institution will need to do certain things to protect its position if this is the option chosen. If instead the institution decides to make only a partial deduction set by reference to the proportion of work not being done, it should still take action to minimise the risk of the partial deduction being challenged and to preserve its position for potential future disputes.
If action short of a strike is taken, institutions will need to determine whether this involves a breach of contract by any staff. If it does, there are various options open to institutions, including a demand that the relevant employees stay away from work (without pay) until they are prepared to fulfil their contracts properly, or making a partial deduction from pay in relation to those elements of the contract which have not been performed. Given that it is far harder to determine whether and to what extent an employee is in breach of contract in comparison with being on strike, steps to be taken by institutions in relation to action short of a strike will require a careful, pragmatic review.