Queen Mary has instructed Heads of Schools to deduct 100% of pay for specific activities listed under Action Short of Strike (ASOS). The Senior Executive Team believes that they are well within their rights to refuse partial performance and can ‘direct staff to focus on specific contractual activities including activities that prioritise education’. In other words, your employer believes they can ask you to drop all of your other work, including your research, any conferences you might want to attend and/or your sabbatical, and ask you to focus on just delivering the classes that were missed due to the strike action. 

Pay will not only be withheld if you refuse to reschedule teaching. Other ASOS activities, including removing any materials related to lectures that will be or have been cancelled due to the strike, will also be considered as partial performance of your contractual work duties. As the guidance states: ‘removing online materials from the Queen Mary website or VLE would be a breach of the employment contract and may be an act of misconduct. Pay can be withheld on a continuous basis until the material is uploaded.’ 

Lastly, it is important to highlight that this guidance does not only provide scope for the disciplining of the striking members of staff. As the guidance outlines: ‘staff not participating in strike action or ASOS can be asked to support the prioritisation of rescheduling of work missed due to industrial action, including lectures and any other education activities.’ This means non-striking staff can be asked to cover for absent colleagues and to take over their teaching, especially in situations where their striking colleagues refuse to reschedule the lectures that were cancelled due to the strike. 

The guidance has little to say about how all of this is going to fit into manageable workloads. It only states that ‘some work may have to be delayed, reallocated or reprioritised to ensure staff are not overburdened and maintain a reasonable overall workload’. How this will be possible considering that one of the issues under the Four Fights dispute is workloads has not been clarified in the guidance. 

You can read the detailed guidance sent out to Heads of School below. 

Guidance for line managers to mitigate the impact of Strike Action and Action Short of a Strike (ASOS)

When will Action Short of Strike (ASOS) take place?

UCU has now contacted Queen Mary to issue notice of industrial action in relation to each ballot, and confirmed that from 7th February 2022, the industrial action will be continuous action short of a strike (ASOS) starting on 7 February and 10 days of strike action between 14 February and 2 March. 

UCU have a mandate for action for six months. As this point they have not notified an end date for the ASOS within that period.

When will strike action take place?

UCU has provided notification that they intend to take up to 10 days of strike action at 44 institutions in relation to USS pensions, and at 39 institutions in relation to pay and working conditions. 

The strikes at Queen Mary are planned as follows:

  • Week 1 (USS pension dispute only): 5 days; Monday 14 to Friday 18 February
  • Week 2 (both the pension and the pay & working conditions dispute): 2 days; Monday 21 and Tuesday 22 February 
  • Week 3 (pay & working conditions dispute only): 3 days; Monday 28 February, Tuesday 1 and Wednesday 2 March

What is Action Short of Strike (ASOS)?

While a strike is a concerted and complete stoppage of work, ‘action short of a strike’ (ASOS) is action which affects only certain aspects of work.

ASOS will consist of participating UCU members:

  • working their contracted hours and duties and not volunteering to do more;
  • not covering for absent colleagues;
  • removing uploaded materials, and/or not sharing materials,  related to lectures or classes that will be or have been cancelled as a result of strike action
  • not rescheduling lectures or classes cancelled due to strike action.

UCU also obtained a mandate for ASOS consisting of a marking and assessment boycott. However, at this point UCU has not advised us that they will be proceeding with this form of action. The University would need formal notification (14 days) for this form of action to proceed lawfully. 

Can staff refuse to carry out any duties under ASOS?

Where staff taking part in ASOS are not ready and willing to fulfil their planned educational activities on time, 100% of pay will be deducted. In these circumstances, any work that the member of staff does undertake will be voluntary. 

Where staff are participating only in those forms of ASOS that don’t amount to breach of contract (working their contracted hours and duties and not volunteering to do more) then line managers must direct staff to prioritise all planned educational activities. In these circumstances, the University is entitled to direct staff to focus on specific contractual activities including activities that prioritise education.

Will staff be paid as normal if they participate in strike action?

For strike action, the University will withhold 100% of a full day’s pay for every day of strike action undertaken. This will be the case whether strike action is for all or part of the day.  Staff must advise you if they have participated in strike action on the day they return to work so that appropriate deductions can be made. 

The calculation of a day’s pay will be based on 1/365th of annual salary

Will staff be paid as normal if they participate in ASOS?

Where participation in ASOS means that a member of staff is not ready and willing to carry out their full contractual duties, this is an offer of partial performance and a breach of contract. Queen Mary does not accept partial performance of employment contracts by its staff. The University will deduct pay for action short of strike (ASOS) where it constitutes a breach of contract. 

Where staff taking part in ASOS are not ready and willing to fulfil their planned educational activities on time, 100% of pay will be deducted. The calculation of a day’s pay will be based on 1/365th of pro rata annual salary. Any salary deductions for participating in ASOS will be processed as soon as possible, and in full, typically the next pay date.

As the University does not accept any partial performance related to educational activities, any other work which a member of staff carries out during such participation in ASOS is carried out on a voluntary basis and without entitlement to be paid for it.

Once a member of staff confirms to you that they are now ready and willing to carry out their educational activities in full, deductions will stop and they will be expected to complete all work not carried out during participation in ASOS within timescales directed by the Head of School/Institute or their appropriate delegate.  

In what circumstances will pay deductions be made for ASOS?

Deductions will be made for the following forms of ASOS, on the basis that they are a breach of contract because a member of staff is not ready and willing to undertake their full contractual duties:

  • not covering for absent colleagues;
  • removing uploaded materials, and/or not sharing materials,  related to lectures or classes that will be or have been cancelled as a result of strike action
  • not rescheduling lectures or classes cancelled due to strike action.

Example: If, as a result of their participation in ASOS, a member of staff does not reschedule a lecture cancelled due to their participation in strike action, as directed by and within a time frame specified by the Head of School/Institute or their delegate, the University will withhold a full day’s pay for each day until they do so.

Staff who have taken part in strike action but are not taking part in forms of ASOS which amounts to a breach of contract, are expected to work normally, which will include prioritising the duties listed above, together with:

  • student recruitment, including completing activities that were impacted by strike action;
  • core activities related to student support, including academic advising, including completing activities that were impacted by strike action;
  • marking and assessment activities, including completing activities that were impacted by strike action.

How can I ensure that essential duties are covered?

You can ask staff to tell you in advance if they are planning to take strike action, however there is no obligation for them to do so. 

During the period of ASOS called by UCU, you can ask colleagues to confirm that they will be working normally, and remain ready and willing to perform their contractual duties in full, in terms of all educational activities, before they are assigned specific work. 

If any colleague does not provide this confirmation, they will be considered to be participating in ASOS (until you are satisfied that they are working normally) and pay should be withheld in full for each day until the individual confirms that they are ready and willing to carry out their contractual duties in terms of all educational activities and you are satisfied that they are doing so.  

Deductions should be made regardless of whether the work which they are not prepared to carry out, due to their participation in ASOS, is assigned to another member of staff. 

Once a member of staff’s participation in ASOS has ended, it is reasonable for you to ask them to prioritise the rescheduling of work missed due to industrial action, including lectures and any education activities, and work not carried out during their participation in ASOS. You should direct staff to prioritise this over all other work that they might have otherwise chosen to do (including any research, conferences and any sabbaticals). Compliance with such requests demonstrates that a member of staff is ready and willing to perform their contractual duties in full. 

A failure to reschedule and deliver any, and all, cancelled lectures, classes and education activities, or other work as required to support educational activities, will amount to a breach of contract and partial performance resulting in the University deducting a full day’s pay until the work is carried out.

How are deductions made?

Members of staff will be asked to declare when asked if they have participated in strike action and ASOS (and the action taken) so that appropriate deductions can be made.

What is the impact of participating in each of the forms of ASOS that UCU has called for?

With the exception of working to contract and refusing to carry out voluntary duties, all other forms of ASOS called by the UCU are likely to constitute a breach of a contractual commitment, because the member of staff is not willing to perform their contract in full, and will lead to an associated pay deduction.

Working contracted hours and duties and not volunteering to do more:

“Working to contract” means that the staff member is still ready and willing to perform all of their contractual duties in full. If they refuse to do something which is entirely voluntary and non-contractual, there will be no partial performance or breach of contract. However, there will be a breach of contract if they refuse, or are not ready and willing to carry out, something which is required under their contract or they can be reasonably instructed to do under their contract. 

Ahead of the commencement of any ASOS, managers should be clear with their staff about their contractual duties, and the current work to be prioritised in the context of each individual’s reasonable workload, together with any deadlines.

Not covering for absent colleagues:

If the request is to cover work in an individual’s own work area, the work is reasonably within the capability of the member of staff and there is previous practice of staff covering for colleagues in this way, then there is a strong argument that the request to cover would be a lawful, contractual instruction, hence a refusal would be a breach of contract. 

Removing uploaded materials, and/or not sharing materials, related to lectures or classes that will be or have been cancelled as a result of strike action:

Removing online materials from the Queen Mary website or VLE would be a breach of the employment contract and may be an act of misconduct. Pay can be withheld on a continuous basis until the material is uploaded.

Not rescheduling and/or conducting lectures, classes or any education activities:

It is reasonable to ask academic staff to prioritise the rescheduling of work missed due to strike action, including lectures. Managers can direct staff to prioritise this over other work that the member of staff might have otherwise chosen to do. A refusal or failure to reschedule the cancelled lectures or classes is considered a breach of contract and partial performance. 

Voluntary duties:

An employee undertaking ASOS and working to contract 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 and no pay will be deducted.

Activities which in most cases may be deemed to be ‘voluntary’ which a member of staff may reasonably decline under ASOS (without loss of pay):

  • Weekend working
  • Attending evening events
  • Attending non-compulsory training sessions

However, it is worth noting that a member of staff may breach their contract if they refuse to undertake duties they would normally participate in, with the intention of disrupting the business of Queen Mary or causing maximum inconvenience. In this context, participation in open days, for example, may be a reasonable expectation.

How do I manage workloads?

Managers need to be mindful that there is no unreasonable expectation for staff to take on a higher volume of work overall to catch up on everything they missed due to industrial action, although some may well do so by choice. Some work may have to be delayed, reallocated or reprioritised to ensure staff are not overburdened and maintain a reasonable overall workload. Managers are entitled to give reasonable instructions on prioritisation of work following participation in strikes or ASOS.

Can I reprioritise the work of staff not taking industrial action? 

Staff not participating in strike action or ASOS can be asked to support the prioritisation of rescheduling of work missed due to industrial action, including lectures and any other education activities. Any requests must be reasonable in terms of overall workload, and skill set to be able to support the activity requested. If colleagues have any concerns about requests such as this, all attempts should be made to manage any concerns informally in the first instance.