Members may be aware that the University of Southampton is refusing to hear Grievances from members concerning pay deductions arising from the UCU Marking & Assessment Boycott (MAB). As a result of this, the Branch passed a motion at our recent Emergency General Meeting on 19/09/2023, stating that we have ‘no confidence in the University’s ability to apply its grievance procedure in a fair, reasonable and unbiased manner.’

As this is now a matter of considerable interest to our members, we publish below the relevant correspondence we have had with the University to date, comprising:

• An email and attachment of 17/08/2023, from UoS to SUCU, advising us that the University will not be hearing MAB-related grievances.
• A letter (sent by email) of 18/10/2023, from SUCU to UoS, setting out our concerns about this decision.

We will update members when we receive a reply.

Email from UoS to SUCU, 17/08/2023

Dear [SUCU President],

I am writing to you following receipt of a number of individual grievances received across the University in relation to UCU’s industrial action, and more specifically the marking and assessment boycott (MAB).

In response to the grievances received, the University has sought legal advice (the legal privilege in this advice is not waived) on the matters raised by colleagues in respect of the University’s position on partial performance and withholding pay. In summary, the University does not believe these grievances are matters that can be reasonably dealt with in accordance with the University’s Grievance Procedure.

The Grievance Procedure (at Part II ¶4) states that it is concerned with grievances raised by members of staff concerning their employment, which relate to themselves as individuals.  The grievances raised in relation to MAB are about the University policy which applies to all of its employees, and is only affecting these particular employees because they have chosen to participate in the MAB.  Therefore, these grievances do not relate to the employees as an individual in accordance with the application and scope of the procedure.

Further, the University has a clear, consistent and lawful policy on withholding pay where there is partial performance of the contract of employment through participation in ASOS. The University has a discretion to pay a proportion of an employee’s pay when they are engaged in ASOS, but no right for the employee to be paid a particular amount (on the basis of proportionality or quantum meruit). As reiterated to Southampton UCU on 3 May 2023, the University’s policy on withholding pay in these circumstances has been clearly brought to the attention of employees and explained prior to them participating in the MAB.

The University intends to write to each individual outlining the above position. A copy of that letter is attached.

With best wishes,

[HR Director, Client Services]

Attachment: template letter sent to members who had raised Grievances

Dear colleague,

Your grievance dated xx

I am writing in response to your email of DATE 2023, in which you stated that you wish to raise a grievance regarding the withholding of your pay in respect of your participation in the UCU marking and assessment boycott (MAB).

While the contents of your grievance are noted, the University does not agree that its approach to withholding pay from those taking part in the marking and assessment boycott is unlawful, unreasonable or disproportionate. Employers are legally entitled to withhold pay from an employee who chooses to breach their contract by taking part in action short of strike (ASOS). Further, the withholding of pay for participation in ASOS, constituting a breach of the employment contract, is a matter of policy and not one that is an issue for negotiation or consultation.

The Grievance Procedure (at Part II ¶4) states explicitly that it is concerned with  grievances raised by members of staff concerning their employment, which relate to themselves as individuals.  The grievance you have raised is about University policy which applies to all of its employees, and  it is only affecting you as an employee because you have chosen to participate in the MAB. As your grievance does not relate to you as an individual in accordance with the application and scope of the procedure, the University has decided that these are not issues which would be appropriate to address under our  grievance procedure.

I will nevertheless make clear the University’s position below.

Upon receiving notice from UCU of its dispute in relation to the 2022-23 pay round, the University published its relevant documentation in response to any proposed strike action and/or any action short of a strike (ASOS), these included the Withholding Pay policy, ASOS guidance, and the Frequently Asked Questions (FAQs). These resources have been available to staff since November 2022 (the start of industrial action on the 2022-23 pay offer) and were available at the start of the marking and assessment boycott, on 20 April 2023.

The University clearly outlines in these documents and resources that it rejects partial performance, as outlined in Section 3.2 of the Withholding Pay policy:

‘The University does not accept partial performance and this will normally result in the withholding of pay. It is within the University’s legal rights to withhold 100% of pay for partial performance. The University also reserves the right not to pay staff for any other work they voluntarily choose to do while participating in action short of a strike’

Therefore, the approach taken by the University to withholding pay is entirely consistent with our legal rights to do so. Where an employer rejects partial performance, the employee taking part in action short of a strike (ASOS) is not entitled to receive any pay, including work they choose to voluntarily undertake.

The University however, took the decision in the first instance to exercise its discretion and withhold a proportionate amount of pay, 50%, without prejudice to its right to withhold 100% of pay in relation to the marking and assessment boycott. Whilst not a decision taken lightly, the decision was based on the impact, disruption and harm the industrial action would potentially have upon our students.

The fact that you may or may not have carried out some of your contractual duties does not mean that the University has waived its policy of non-payment for partial performance of the contract. The determinative factor is that you were not ready and willing fully to perform your contract. Case law makes clear, that where the University exercises its discretion to pay a proportion of your pay, that does not amount to an acceptance of partial performance.

In summary, the University has a clear, consistent and lawful policy on withholding pay where there is partial performance of the contract of employment through participation in ASOS. The University has a discretion to pay a proportion of an employee’s pay when they are engaged in ASOS, but no right for the employee to be paid a particular amount (on the basis of proportionality or quantum meruit). As reiterated to the Southampton UCU branch on 3 May 2023, the University’s policy has been clearly brought to the attention and available to all employees prior to the commencement of the MAB and further explained through FAQs. As such, the University believes colleagues knowingly decided to participate in the industrial action accordingly.

For the above reasons the University does not agree that it has acted unlawfully and no further action will be taken under the Grievance Procedure in relation to the complaint which you have raised.

Your Sincerely,

[HR Director, Client Services]

Letter from SUCU to UoS, 18/10/2023

Dear [HR Director, Client Services],

Thank you for your email and attachment of 17/08/2023, entitled ‘University Response to MAB Grievances’, in which you advised the Branch that the University is denying UCU members access to the Grievance Procedure. The branch objects in the strongest possible terms to the University’s decision, which we regard as wholly unjustified, without precedent, detrimental to local employment relations, and a breach of the trust that staff have placed in the leaders of this University. We also draw your attention to Motion 2, passed overwhelmingly at a Branch EGM on 19 September.

We note the following text on the University’s Grievance webpage (emphasis added):

‘All members of University staff should be treated fairly and with respect. There may be times when you are unhappy about the treatment that you have received or about any aspect of your work.

If attempts to resolve the situation informally have been unsuccessful, it may be appropriate for you to raise a formal grievance. Our procedures provide a fair and consistent way of dealing with situations where a formal grievance is raised.

All University procedures are underpinned by the principles of natural justice and the ACAS code of practice.’

As a statement of intent, this is adequate, if lacking in ambition: it is a basic expectation of employment law that procedures treat staff fairly and consistently, and that grievance and disciplinary procedures follow the relevant ACAS Code of Practice and observe principles of natural justice. We suppose that a member of staff reading the words above might at least be confident that the University of Southampton understands and commits to uphold these basic minimum standards, yet any such confidence would be misplaced.

We request answers to the following questions:

1. The University of Southampton states in the 17/08/2023 email/attachment that the complaints of our members are not within the scope of the University’s Grievance Procedure as they do not relate to themselves as individuals, citing paragraph 4 of the pre-August 2023 Procedure. This assertion is factually inaccurate as it is a matter of record that staff members were individually sanctioned by the University based on individually calculated deductions. More importantly, we are concerned that the University’s position effectively excludes all policies, procedures and practices, and indeed all management decisions made with reference to policies, procedures and practices, from scrutiny via the Grievance Procedure. Please can you point to where in the ACAS Code of Practice it states that grievances cannot be raised about employment policies, procedures and practices?
2. Do you believe the University of Southampton’s refusal to hear MAB-related grievances is consistent with the letter and spirit of the ACAS Code of Practice? (Note that paragraph 47 of the Code does not apply, because the grievances were raised by individual employees.)
3. Why was paragraph 8 of the University’s pre-August 2023 Grievance Procedure, which appears to contradict the University’s position set out in 1 above, ignored?
4. It is unclear who the Stage 1 managers were, or indeed if any were appointed at all. Were Stage 1 managers (i.e., decision makers) appointed in accordance with paragraph 25 of the Procedure, or was the decision not to hear the grievances decided centrally? Why did complainants learn from you that their grievance was being dismissed, rather than the Stage 1 manager, as required by paragraph 27 of the Procedure?
5. Given that the University appears not to have followed its own Procedure and past practice in appointing Stage 1 managers (decision makers), and given that the grievances relate to decisions taken by the University’s leadership, there is understandably a concern among our members that the decision not to hear these grievances may have been taken or unduly influenced by the University’s leadership. Does the University of Southampton regard its refusal to hear MAB-related grievances as consistent with its stated support for the principles of natural justice, in this case the principle that decision makers must be, and must appear to be, unbiased?
6. UCU notes that the 17/08/2023 email/attachment suggests that the University took its decision on the basis of arguments and evidence it procured, including legal advice, whereas complainants were not allowed the opportunity to present their arguments and evidence. In this context, does the University believe its refusal to hear MAB-related grievances is consistent with the principle of natural justice that all sides should have the opportunity to present their arguments before a decision is taken?
7. Further, it now appears to be accepted practice that the University can have a grievance immediately decided in its favour (as this is the effect of its refusal to hear these grievances), simply by claiming to have obtained a supportive legal opinion. When did this practice begin? Will the University of Southampton waive its legal privilege to share such legal advice with the other parties?
8. Has UCEA issued advice (including legal advice) or instruction to the University in respect to (i) its MAB pay deduction policy and (ii) how it should handle MAB-related grievances?
9. During Modernising the Governance negotiations, UCU raised concerns that the University could simply choose not to consider or respond to a grievance, but the University reassured us that such a situation would never occur. Was the University negotiating in bad faith?
10. Does the University of Southampton consider denying UCU members access to its Grievance Procedure to be an example of ‘best practice’?

We look forward to receiving the University’s explanations, and we would like to know what action it will be taking to build staff trust and confidence that it will operate its procedures in line with the University of Southampton policies, the ACAS Code of Practice, and principles of natural justice.

Please note that as this matter is of significant interest to our members, we will be posting this chain of correspondence on our blog.

Yours sincerely,

Southampton UCU