UCU industrial action
On Friday 7 October Leadership forum was issued with the following guidance on the industrial action being taken by UCU from Monday 10 October.
The UCU action
1. Starting on Monday 10 October, the University and College Union (UCU) is taking industrial action to put pressure on universities to renegotiate the changes to the Universities Superannuation Scheme (USS) implemented from 1 October 2011.2. The first phase of the action is a 'work to contract', the implications of which are explored below. The UCU has given notice that, if the employers do not change their position, the action will be escalated. Phase 2 would see a programme of rolling strike action 'with different groups of staff taking turns to take action in order to cause maximum disruption'; and Phase 3 would consist of action short of a strike (ASOS) 'including a boycott of the Research Excellence Framework, other internal administrative processes, and of student assessment'. No timescale has been given for escalation to Phase 2 or to Phase 3.
Working to contract: UCU advice to members
3. The UCU is asking its members, from 10 October, to abide by the terms of their contracts (including their obligation to perform their duties in an efficient manner), but to do no more than that; and in particular
- to work no more than their contracted hours where those hours are expressly stated, and in any event not to exceed the maximum number of hours per work stipulated in the Working Time Regulations;
- to perform no additional voluntary duties, such as out of hours cover, or covering for colleagues (unless such cover is contractually required);
- to undertake no duties in breach of health and safety policies or other significant employer's policies;
- to set and mark no work beyond that work which they are contractually obliged to set and/or mark;
- to attend no meetings where such attendance is voluntary on the part of the member.
4. The local branch of the UCU has advised its members 'to stick to the nominal 37.5 hour week defined by the workload models that operate in most parts of the institution and, certainly, to do no more than a 48 hour week as defined by the law on working time'. (As explained below, this advice reflects a misconception of the legal and contractual position.)
5. The local branch is also advising members that 'SRDS is a contractual obligation at Leeds but Academic Activity Profiling and associated meetings are certainly not'. The branch goes on to say that 'nobody should take part in academic activity meetings or any preparations for these.' (Again, this reflects a misconception of the legal and contractual position, as indicated below.)
6. Nationally, the UCU also seems to be encouraging staff to seek copies of health and safety risk assessments on their jobs and workspaces: see 16 below.
The legal and contractual position
7. The legal and contractual position at Leeds is summarised below.
Hours of work
8. There is no specified working week for academic and related (professional and managerial) staff. The standard contract indicates that 'you will be required to devote the whole of your time to the duties of the post and your hours of work will be as laid down by your head of school'. (Some older contracts might not use precisely this form of words, but the reference to devoting 'the whole of your time' is understood to be common to all variants.)
9. Leaving aside the question whether the Working Time Regulations actually apply to academic and professional and managerial staff, the UCU advice to members over-simplifies what the Regulations require. Actually, the Regulations permit working for more than 48 hours in a week - provided that the employee's average over 17 weeks is less than 48 hours a week.
Contractual duties
10. Legally, an employee is entitled to refuse to carry out duties above and beyond those contractually required; and a refusal to do work that is genuinely voluntary is not a breach of contract.
11. In practice, however, standard contracts for academic and professional and managerial staff at Leeds refer to a job description which is typically fairly widely drawn. In addition, the contract makes it clear that employees 'may be required to undertake other duties as appropriate'. This means that, within reason, few 'tasks' can legitimately be regarded as lying outside the scope of the contract.
12. In any event, heads are entitled to give their staff 'lawful and reasonable instructions about how their contract is performed'. This includes instructions about the prioritisation of work and timescales for its completion. It also allows heads or other managers to require the member of staff to attend a meeting to discuss her or his work.
13. The University considers that providing cover for absent colleagues is established custom and practice.
14. As the UCU advice acknowledges, employees are under a general obligation to perform their duties in an efficient manner. There is a breach of contract if the employee refuses to perform in full what is contractually required or if the employee seeks to undertake what is contractually required in a way which is intended to cause disruption or damage to the employer's business. This includes situations where the employee applies rules, instructions or procedures in a pedantic or literal manner - giving them an unreal and unrealistic meaning - as part of a campaign of disruption.
The University's position
15. The University expects staff to fulfil the terms of their contract, and will not of course seek to deduct pay from (or otherwise penalise) staff who, taking part in Phase 1 of UCU's action, are genuinely discharging their contractual duties. However, as the Council made clear last session (see Annex 1), partial performance of contract is not acceptable.
Health and safety
16. A note from the Director of Wellbeing, Safety and Health is appended (Annex 2). It provides advice to help heads respond to any requests from UCU members for copies of risk assessments (see 6 above). Further advice on this aspect of the industrial action is available from Gary Tideswell (g.tideswell@adm.leeds.ac.uk; ( 0113 34 36033).
Action for heads
17. No specific actions are required of heads at this stage. However, you are advised to contact your HR manager in the event that you have concerns that individual staff may not be fulfilling the terms of their contract.
18. Heads may copy this circular to their colleagues at their discretion.
Further information
19. The 'work to contract' is a form of action unprecedented in the sector, and it is probable that we will need to issue further guidance as events unfold. In the meantime, any questions or concerns should be raised with your HR manager in the first instance.
Roger Gair
University
Secretary
7 October
2011
Annex 1
Statement of principles on industrial disputes and industrial action
The following principles were approved by the Council in March 2011 to codify the University's position on industrial disputes and industrial action.
- The experience of our students will be paramount and our approach will reflect our commitment to ensure that students receive an outstanding education.
- Our approach will be consistent with the objective of maintaining our position as world-class research-led institutions.
- We support and promote excellence in teaching and research and in the performance of all our staff in the development of our students.
- In order to compete on the world stage we will operate professional employment policies and practices including competitive, fair and sustainable pay and reward systems.
- We aim to work constructively with the trade unions to recognise and reward excellence. We will strive to avoid disputes and pursue a positive employee relations agenda.
- In the current disputes with UCU we support the proposed changes to USS to ensure that the scheme remains viable in the future. We also support the approach taken by UCEA in the current round of pay negotiations.
- If industrial action is taken, we will respond appropriately on the basis of the principles outlined above. Partial performance of any kind cannot be accepted. This applies equally to all staff, whether they are part of the academic or support communities.
- Strike action, or action short of a strike, constitutes a breach of contract and will lead to pay being withheld, taking into account the impact on the university's performance and its commitment to its students. This is in accordance with both the legal framework and common employment practice.
Annex 2
Guidance for Deans, Heads of Schools and Services in relation to health and safety and the proposed "working to contract" action starting 10/10/11.
At the University of Leeds the relationship between the Trade Unions and the University is enshrined within the 'Revitalising Health and Safety' agreement signed by all parties and witnessed by the Health and Safety Executive in January 2008. This agreement firmly stated that the Trade Unions are equal and active partners in ensuring best practice in health and safety management. This agreement remains in place and continues to form the basis of our approach.
To fulfil the University's part of the agreement, Trade Unions are fully involved in the development and approval of the Health and Safety Policy and the protocols that form the management system framework to support its implementation. This health and safety management system is readily available on the Health and Safety Services website.
The UCU statement to members outlining the actions to be undertaken when 'working to contract' states:
"3. Undertake no duties in breach of health and safety duties or other significant policies;"
In terms of duties - it is highly unlikely that a breach will arise as most legislation places the responsibilities upon the employer rather than the individual employee.
Hence the expectation is that this action will take the stance of challenging the performance of work activities or tasks where there is not a suitable and sufficient risk assessment in place. For clarity the following information is provided in relation to the purpose and meaning of risk assessment:
1. It is not our practice to assess the risks of a job type.
2. We do assess the risks from significant hazards arising out of work activities or tasks (e.g. handling and using hazardous chemicals; using powered equipment; handling heavy loads etc). The assessment will indicate appropriate controls required to minimise any risks to 'as low as is reasonably practicable'.
3. If those work activities or tasks are undertaken by an individual then they are informed of the risks and the controls required. This may require some instruction or training.
4. Most significant hazards have been identified and assessed. The assessment of those risks arising from identified significant hazards need to be recorded. The record (commonly known as 'the risk assessment') will be kept either locally and/or on the University's risk assessment database called RIVO.
5. There are some generic 'risk assessments' for office-based and other common activities and these are available on RIVO. If your Faculty, School or Service does not normally use RIVO your Health and Safety Manager can support you in accessing the relevant records. It can be accessed using your usual ISS log-in credentials.
It is worth noting that we do not risk assess rooms or common spaces (e.g. Central Teaching Space). These rooms are managed by the Facilities Directorate and if used under normal circumstances are fit for purpose and present no significant hazards. Should a member of academic staff wish to undertake activities within these spaces that will potentially expose others, especially students, to significant hazards it is the responsibility of that staff member to undertake an assessment of the risks.
6. Trivial hazards (i.e. those that are not over and above day-to-day hazards) do not need to be assessed or recorded. Refusing to perform work activities or tasks which only produce exposure to trivial hazards would not be considered to be consistent with the discharge of contractual duties.
In relation to Display Screen Equipment, for example computers, the approved protocol requires the user (statutory term) of the work station to carry out a self assessment. This is supported by an online assessment and instruction programme and all users are provided with a biennial reminder to perform this task by the University's IT system. It is assumed that any member of staff requiring an ISS username and password will be defined as a user.
In most situations maintaining the workspace in a good state is the responsibility of the employee(s) based within that area. The University has implemented a Monitoring of Health and Safety Protocol across the University. As a consequence regular inspections of workplaces are undertaken, often with Trade Union involvement, to identify any health and safety hazards. If found the responsibility for actioning an appropriate resolution is assigned to an individual which can be the employee.
If you need any assistance or further explanation please contact your Health and Safety Manager.
Gary
Tideswell
Director
of Wellbeing, Safety and Health
6
October 2011