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HE Pay Dispute 2013 – FAQ

Strike FAQs and guidelines on picketing

If you have a question that is not answered here, please email your branch secretary or campaigns@ucu.org.uk . We will do our best to reply to you and/or update this FAQ.

1. What am I expected to do during a strike?
2. Do I have to tell my employer that I am taking strike action?
3 . What about my students?
4. Am I breaking my contract by taking strike action?
5. How much money will I lose?
6. What if I am part time?
7. How will it affect my pension?
8. What is the law on picketing?
9. I am not a UCU member. Can I take part in the strike?
10. I am a Research Fellow fully funded by external bodies but I don’t want to cross the picket line.(HE)
11. I am a clinician and a UCU member, and I have clinical commitments on strike day. What can I do? (HE)

1. What am I expected to do during a strike?

Your union will only take strike action once every other avenue of influence has been exhausted and when your branch officers think there is no other way to make members’ views clear. It is a very serious sanction and that’s why we ask that every member observes the strike. Every member who does not observe the strike is directly undermining the union’s bargaining power and making it harder for the union to protect all its members.

When we call a strike we ask that members do not come into work and do not reschedule their classes. The best possible thing you can do is contact your local rep and volunteer to help out on the picket lines. It isn’t illegal, it isn’t dangerous and it can be fun.

2. Do I have to tell my employer that I am taking strike action?

In order to fulfil legal requirements, employers have been provided with statistical information about UCU members taking industrial action, but not individual names. You are under no obligation to inform management in advance as to whether you will be taking part in strike action or action short of a strike. However, if your manager asks you after the strike whether you took action, you should answer truthfully.

3 . What about my students?

We are a union of professionals and we know that our members don’t like taking any action that affects students. It is the same for many public services. However, when we take action, we are generally making a case for greater investment in or defence of the quality of the service we provide. In the case of job cuts, for example, we argue that our students will be hurt far more by management’s actions than by our own. Observing the strike is defending the interests of staff and students alike. Undermining the strike might feel like the right thing in the short term but will only serve to encourage management and we will all suffer more in the longer term.

Formally, it is management’s responsibility to explain to students if classes are to be cancelled on strike days. However, you may wish to talk to your students before the strikes explaining why the union is taking this action. We will have a leaflet available explaining to students why we feel it is necessary to take action. Ask your rep for copies.

4. Am I breaking my contract by taking strike action?

All effective industrial action may be a breach of your contract of employment. But because UCU has carried out a statutory ballot and the action has been formally called, the law protects workers from dismissal whilst taking part in lawful industrial action or at any time within 12 weeks of the start of the action and, depending on the circumstances, dismissal may also be unfair if it takes place later.

5. How much money will I lose?

You should expect to have a day’s salary deducted for taking part in the strike. Some institutions state that 1/260th of your annual salary will be deducted for each day of action. Any loss greater than this can be challenged by the union.

6. What if I am part time?

UCU believe that any deduction must be pro-rata for part time staff. The deduction must only be for your contracted hours. Please contact UCU for support in challenging any greater loss.

7. How will it affect my pension?

In previous one-day strikes it has been the experience of UCU that most university employers do not withhold superannuation contributions and therefore participation in strike action has not generally affected pensions. Also, institutions that do choose to withhold contributions often make provision for members to make up pension and AVC deficits from their pay. If you are concerned about any effect, contact Geraldine Egan at UCU (gegan@ucu.org.uk).

8. What is the law on picketing?

Peaceful picketing is entirely legal. Picketing should be carried out at or near an entrance or exit from a site at which the pickets work. When others who are not in dispute come into work or use these entrances or exits, pickets must not interfere with them.

The legal categories of people permitted to picket are:

  • UCU members in dispute
  • UCU officials and NEC members supporting members in dispute, providing they are accompanying union members who work at the location.
  •  Visitors to the picket are entirely lawful but should not form an official part of the pickets and should not, for example, be given armbands.
  • Further detailed advice on the picket lines should be issued separately.

9. I am not a UCU member. Can I take part in the strike?

We would like everyone to respect the picket lines and not go into work, but if you are not a UCU member we will not be able to support you if the college decides to take disciplinary action against you. However, it is your general support that counts—if you can get permission from your line manager to take annual leave or work from home, this would be support.

10. I am a Research Fellow fully funded by external bodies but I don’t want to cross the picket line.(HE)

If you are a UCU member please join the picket line! If you are not, try to arrange to work from home.

11. I am a clinician and a UCU member, and I have clinical commitments on strike day. What can I do? (HE)

We fully understand that clinical staff including medics and psychologists have professional commitments to provide clinical cover. Clinicians are advised not to withdraw from any commitment to direct clinical care and activities in support of such. Any clinician concerned about the definition of these terms is advised to contact their own professional defence organisation, and ask them to contact the relevant professional body (eg the GMC) on their behalf. The UCU will therefore respect this. A clinician who intends to strike should be aware that this will only count as lawful action as part of the UCU strike and if s/he is a UCU member.

They Want to Change My Contract

Sadly in such uncertain times many institutions will look to worsen the terms and conditions of the employment contract. This can range from cuts in sickness and absence benefits, changes hours worked, cuts to holiday entitlement or even fundemental changes to the work itself – often resulting in a pay cut.

However, you DO NOT have to automatically accept these changes to terms and conditions. Your contract cannot normally be changed without your acceptance. By acting collectively UCU members have successfully resisted such changes and there are good examples of this already here in the South West Region.

If you find yourself in this situation:

  • If you are a UCU member contact your local branch secretary
  • Offer to become involved
  • If you are NOT a UCU member join now www.ucu.org.uk/join
  • Get a copy of your contract and familiarise yourself with the terms and conditions
  • Do not sign a new contract or work in a way which implies acceptance of new terms
  • Do not allow your colleagues to accept as doing so will undermine your position
  • Speak to your colleagues about this information and persuade them to join you
  • Your branch may organise formal rejection

Remember if you accept – for example a change to sickness and absence entitlement thinking you will never need it – you will be undermining the position of your colleagues.You may be setting yourself up for further contract changes.

Contract Changes and the Law

Employers should never introduce contract changes without consulting either the union, other employee reps (if there is no recognised union) or the individual employee.

Contracts can only be changed lawfully:

  • where the contract allows for a change — for example, if there is a reasonable mobility clause allowing the employer to change the place of work;
  • if the parties agree to the change;
  • through collective bargaining; or
  • by terminating the existing contract by giving full contractual notice and simultaneously offering new terms. (NB – This can be an unfair dismissal).

If an employer insists on changing terms without agreement, this is a unilateral variation of contract and the employee may be able to pursue a claim for breach of contract or for unlawful deduction of wages. An agreement to a change of contract can either be express (for example if the employee verbally consents or signs a new contract) or implied by the employee’s conduct. For example, if an employer announces that the hours of work will change from a 9.30am start to a 9.00am start and the employees come in at 9,00am the next day and carries on coming in at 9.00am without objecting, this is an implied agreement to change their hours to a 9.00am start — even if they have not said “yes” or “no” to it.

It is important that employees are made aware that a failure to oppose a change could mean that they will be taken to have accepted it and may not be able to challenge it at a later date.

However, this is not necessarily the case if the proposed change does not take immediate effect:

In workplaces with a recognised union, contractual changes usually occur through collective bargaining.

Breach of contract

If me employee does not agree to proposed changes and the employer goes ahead and changes them unilaterally, this is generally a breach of contract. The employee can do a number of things in response:

  • accept the change;
  • refuse to work under the new terms, it is then up to the employer to decide what to do;
  • object to the new terms but carry on working under them while taking legal action;
  • I carry on working but treat themself as dismissed and claim unfair dismissal (only if there is a substantial difference in terms);
  • I resign and claim constructive dismissal (if there is a fundamental breach); or
  • I consider whether the change is valid under TUPE.

Employees who continue working following a breach of contract may be taken to have accepted the change and therefore waived their right to pursue a breach of contract claim. If they wish to challenge the breach, it is important for them to make it clear that they do not accept the changes and to act quickly in getting legal advice and in pursuing a claim. If they are not immediately aware that there has been a change, they should protest as soon as they become aware of it.

Forcing change by terminating contract and offering new (worse) terms

Increasingly, employers who fail to secure the consent of the workforce to a contract change are responding by giving notice to end the contracts of employment, while at the same time offering new (usually less favourable) terms and conditions. A large number of employers, especially local authorities, have adopted this course since the start of the economic downturn.

If an employer terminates the existing employment contract and offers new terms, this is not a breach of contract, as long as the employer gives adequate notice (either the statutory minimum or the amount stated in the contract, whichever is longer) (Kerry Foods v Lynch EAT/0032/05 ([2005] IRLR 680)). This is because by giving notice to end the contract, the employer is complying with the contract rather than breaking it. However, this will be a dismissal and employees in this situation can bring a claim for unfair dismissal, as long as they have enough service.

And Finally…

Contract Law is complex and you will need expert advice and support and to work collectively with your colleagues to get the best possible outcome. Both of these needs can best be met by joining a trade union. Join UCU here www.ucu.org.uk/join

Join other teaching unions here: www.ucu.org.uk/educationunions

Information here is from “Law at Work” 2013, a booklet published by the LRD (Labour Research Department) (info@lrd.org.uk www.lrd.org.uk ) for your copies.