Minimum service levels within education during strike action

As the Strikes Act applies to the whole of Great Britain, any minimum service levels for higher education institutions will also affect the devolved higher and further education sectors in Wales and Scotland, although the UK Government will have to consult with both governments prior to bringing in regulations for this.

Announcement

The Department for Education’s press release on the consultation stated that it will focus on:

Potential for claims

The recent strike action (mostly taking place at the end of September) and marking and assessment boycotts (from April to September this year) resulted in cancelled teaching sessions, students not knowing their grades and prevented some students from graduating. This has clearly adversely affected many students who may seek to claim a breach of contract against their higher education provider if they have incurred loss due to the strike action.

Higher education institutions should ensure they have well-documented evidence to show that they have taken all reasonable steps to deliver the terms of their contracts with students and that they have acted in compliance with consumer law, so as to limit their liability for such claims. In addition, institutions may also potentially argue either that the contract is frustrated (although in our view this argument is unlikely to succeed in this scenario), or that they can rely on a force majeure clause, by arguing that strike action is unpredictable and an event that is outside the institution’s control. However, the Office of the Independent Adjudicator for Higher Education (the ‘OIA‘) warns that reliance upon force majeure clauses may not be appropriate given the imbalance of power between an institution and a student when formulating the contract.

Minimum Service Levels – is this the answer?

If minimum service levels are in force for a relevant service (e.g. education), once a trade union has given notice of strike action employers can issue a “work notice” at least 7 days before the earliest strike date. The work notice must confirm the identity of any employees required to work, the work they must do and the required levels of service, under the minimum service regulations, following consultation with the trade union.

The government has also published a draft statutory Code of Practice to cover the reasonable steps that trade unions should take to ensure members identified on a work notice comply with the notice and do not take part in the specified strike action. Failing to take these ‘reasonable steps’ could result in the employer seeking damages from the union or an injunction to prevent the strike action. Employees who are dismissed due to taking part in strike action have, in certain circumstances, been found to have been automatically unfairly dismissed. The proposed legislation would mean that any workers identified in a work notice who fail to comply with its requirements, such as by participating in the strike action or failing to deliver the minimum service levels, would lose their automatic protection from dismissal. This highlights the importance of the trade union taking reasonable steps to ensure compliance with the notice, because the worker would not necessarily know about this, and might not know that they had lost their protection against dismissal as a result.

The Strikes Act has come under intense scrutiny, with the general argument against it being that industrial relations will be worsened and disputes will therefore become more difficult to resolve. Both the Joint Committee on Human Rights (‘JCHR‘) and Equality and Human Rights Commission (‘EHRC‘) have raised concerns with the Strikes Act’s compatibility with human rights obligations, including Articles 4 (prohibition of slavery and forced labour), 11 (freedom of assembly and association) and 14 (prohibition of discrimination) of the European Convention on Human Rights (‘ECHR‘).

The government are yet to announce the expected timetable for the proposed consultation and any regulations. Their full announcement can be found here.

How can Blake Morgan help?

The law regarding protections for employees who are dismissed for taking part in strike action is complex. At Blake Morgan we have extensive experience of advising on the steps to take in the wake of potential strike action to preserve the relationship with both an institution’s employees and its students. If you’d like to seek legal advice please contact Matthew Smith, Partner and Head of the Education sector or Trish D’Souza, Legal Director in the Education team. Please also feel free to contact us if you are preparing a response to the UK Government as part of the consultation.