Earlier this term, we posted correspondence between us and the University of Southampton, relating to their refusal to hear MAB-related Grievances. We have now had a further exchange of letters, which can be found below:
- A letter (sent by email), dated 30/11/2023, from UoS to SUCU.
- A letter (sent by email), sent 14/12/2023, from SUCU to UoS, in reply.
As readers may be aware, we are now consulting with members about entering a local dispute with the University regarding its continued refusal to hear members’ MAB-related grievances.
Letter from UoS to SUCU, 30/11/2023
Response to Southampton UCU letter dated 18 October 2023
Thank you for your letter dated 18 October 2023 in respect of the University’s position on the marking and assessment boycott (MAB) grievances received.
The letter raises a number of questions, some of which we believe were based on misconstrued statements or fundamental misconceptions. This letter therefore provides a summary response which we believe addresses the relevant points.
In accordance with the submissions made in earlier correspondence with UCU in May 2023, the University policy of rejecting partial performance is long standing, clear and consistent, and was communicated in advance of the industrial action. As UCU are aware, employers are legally entitled to withhold pay from an employee who chooses to breach their employment contract by taking part in industrial action, including action short of strike (ASOS). The policy is therefore based on the appropriate employment legislation and not an issue for negotiation or consultation.
Upon the receipt of multiple grievances, all of which adopted a similar pro-forma template, alleging that the University’s decision to withhold pay for taking part in the MAB was unlawful, unreasonable and/or disproportionate, it was clear to the University that the individual grievances raised were challenging the policy to withholding pay for participation in industrial action and partial performance. We therefore sought external legal counsel, as we were also aware through the University and Colleges Employers Association (UCEA) that a number of other institutions had received similar grievances and provided legal commentary in response to this. Legal counsel’s opinion sought by both the University and UCEA remains confidential and legally privileged, and the University does not intend to waive its privilege to this advice.
Those participating in the MAB made an informed [and conscious] choice to breach their contract of employment when deciding to participate and in the knowledge that the University’s policy would apply. Therefore, as set out in writing to UCU and the individual colleagues on 17 August 2023, the University determined that these were not matters that could reasonably be dealt with in accordance with the University’s Grievance Procedure and which were not issues which were appropriately within the application and scope to address under the grievance procedure (Part II ¶4). For the avoidance of doubt, the procedural content thereafter was not applicable.
The University has and continues to provide relevant information in an open and transparent manner where requested, such as participation dates and the calculation used to withhold pay. We have also facilitated any concerns or issues raised by individuals directly with the faculties to ensure these can be resolved promptly. The University remains committed to addressing these issues and where possible to resolve these informally.
Whilst the University ultimately determined that the substance of the grievances raised by members of staff were not concerning their employment, which relate to themselves as individuals, and therefore not within the application and scope of the procedure, we felt there were a number of other considerations that were relevant. Primarily, that these matters were ‘collective’ in their nature in challenging a university policy position in direct response to industrial action called by UCU regarding a national dispute.
The University strongly believes these matters should have been addressed by UCU through a collective grievance and dealt with accordingly. Whilst there is no ‘agreed’ collective grievance procedure, the Joint Negotiation Committee (JNC) would have been the appropriate committee to discuss such collective issues in the first instance.
As UCU will be aware, the University recently tabled at the JNC a proposal to explore establishing an agreed dispute resolution procedure that would provide a clear and transparent framework to address such issues in the future. The University shall continue to consider all grievances on a case-by-case basis in line with the relevant procedure in place.
We recognise UCU may be disappointed by the University’s decision, but we believe it is unhelpful to suggest or infer that we acted in bad faith during our extensive negotiation and consultation meetings as part of the Modernising the Governance project. That said, we remain committed to working with UCU to maintain good employee and industrial relations for the benefit of all our employees.
Your Sincerely,
[HR Director, Client Services]
Letter from SUCU to UoS, 14/12/2023
Dear [HR Director, Client Services],
Thank you for your letter dated 30 November 2023 concerning MAB grievances. We are grateful to the University for supplying this response in time for it to be considered by our members before they vote in our disputes consultation. You will perhaps forgive us, however, for seeking to have the last word before this vote opens:
- While we note the University’s argument for viewing MAB grievances as a collective matter, we fundamentally disagree. As we alluded to in question 2 in our previous letter, the ACAS Code of Practice provides very clear guidance on what constitutes a collective grievance, stating in paragraph 47:
‘The provisions of this Code do not apply to grievances raised on behalf of two or more employees by a representative of a recognised trade union or other appropriate workplace representative. These grievances should be handled in accordance with the organisation’s collective grievance process.’
It is a matter of record that our members’ MAB grievances were not raised by representatives of UCU on their behalf, but by the members themselves, individually. Therefore, these are individual grievances, not a collective grievance, and the provisions of the ACAS Code of Practice apply in full. - While the University’s position is that these grievances should have been presented as a collective grievance, it concedes that there is currently no collective grievance procedure at the University of Southampton. Therefore, even if we are somehow mistaken in point 1 above, we would have thought the University would have excused staff for failing to use a non-existent collective grievance procedure, and would have exercised its discretion to allow the grievances to be heard, in the interests of fairness and of maintaining good employment relations. University of Southampton staff should be able to rely upon their employer following its published procedures and the ACAS Code of Practice, and for the University to listen to their concerns and treat them with respect.
- In the absence of a collective grievance procedure, the University proposes that UCU should have raised our members complaints at the Joint Negotiation Committee (JNC). We believe the following context is important when considering this proposal:
(i) The Branch President raised concerns over the harshness of the University’s MAB pay deductions with the Vice-Chancellor on 4 July, requesting, in the interests of limiting damage to local employment relations, that the University introduce a cap on MAB deductions, as other institutions had already done. This request was declined by UEB.
(ii) When Southampton UCU representatives raised the topic of the University’s refusal to hear MAB grievances at the next available JNC meeting on 12 October, we were advised that the University’s position remains unchanged.
To be frank, we find it somewhat difficult to believe that the University’s apparent concern to differentiate between individual and collective grievances is motivated by a fastidious conviction to correct procedure. Rather, we fear that the University’s insistence that MAB complaints be categorised as a collective grievance, for which there is no procedure at this University, is a tactic to deny complainants the possibility of resolving complaints using internal procedures. The approach of University of Southampton denies staff their legal right to have a workplace grievance considered by their employer, thus forcing them to have to decide between dropping their complaints, or enduring a stressful, time-consuming and expensive external legal process.
On a more positive note, we concur with the University that negotiating an agreed dispute resolution procedure between the union(s) and the University is now urgent and essential, and we look forward to discussing this further in the coming weeks and months. We would want to include consideration of a Collective Grievance Procedure as part of those discussions.
In the spirit of collegiality, we are of course happy to accept that the University negotiates in good faith. And, like the University, we remain committed to working together to build and maintain good employee and industrial relations for the benefit of our members and indeed of all staff. To this end, we hope that if our members vote to enter a dispute on this matter, or in relation to the ‘Modernising the Governance’ changes, the University will work with us to reach a mutually acceptable resolution, quickly and amicably.
For now, we await instructions from our membership via our online consultation.
With best wishes,
[Southampton UCU]