Since 31 January 2022, staff at Queen Mary have been living with the threat of 100% pay deductions for failure to reschedule teaching lost to strike action, and for participation in a marking and assessment boycott (MAB). Living with this threat is bad enough in itself, but over 100 of us were actually deducted 21 days of wages from July pay packets for participation in a local marking boycott in June 2022. Since that time, we have negotiated two different local agreements which resulted in no deductions for MAB for the month of August 2022, and no deductions for non-rescheduling in April 2023. The latest local agreement held through the national MAB (begun on 20 April 2023) until 30 May 2023. On that day the head of Human Resources emailed all staff to announce that pay would be withheld for a period of up to 42 days from 2 June.
During this time, lots of people have said to us: “But that – the deductions – can’t be legal!” This blog-in-progress is our response to that exclamation. We share what we have learned and how we taught ourselves about the legalities of pay deductions.
Gap in legal protections?
In brief, we learned that disproportionate deductions for ASOS/MAB may not be legal because they are a breach of contract at common law, a detriment prohibited by s.146 TULRCA, and an infringement of trade union collective interests and individual rights in free association as protected by Article 11 ECHR. But the law is not clear and pulls in different directions, as is so often the case.
- Employers do have the legal power at common law to reject the partial performance of contractual obligations and to withhold all pay as a result (Wiluszynski v London Borough of Tower Hamlets  ICR 493). But they have to meet legal standards of clarity and consistency in doing so, which they are not likely to if, in practice, they actually accept work done.
- If they are accepting part performance in practice, then any deductions for lost work ought to be proportionate to the actual loss (Miles v Wakefield Metropolitan District Council  UKHL 15).
- Furthermore we can ask the courts to consider the effects of such deductions on our collective and individual rights under the European Convention of Human Rights (ECHR), especially Article 11’s freedom of association, and as a detriment for engagement in trade union activities that is prohibited by s. 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
In other words, there is a gap in legal protections for workers, which university managements up and down the country are currently exploiting. They are effectively trying to make disproportionate pay deductions lawful as a result of everyday practice and performance. Litigation (or statutory intervention) is required in order to make such deductions clearly unlawful (as David Mead explains here and Alan Bogg and Michael Ford explain here). In the meantime, workers can also make a difference by engaging in everyday legal practice which refuses to accept the legitimacy of such deductions.
Self-Education in Law
Over the last 16 months, we have also learned about practices of community self-education in law and how we might all use legal knowledge in defending ourselves. This blog-in-progress is a reflection on our experience that might be useful to others. We seek to explain the different ways that QMUCU members have generated, discussed, and experimented with legal knowledge as part of our struggle to have this policy withdrawn, and to make all our workplaces more liveable. But we are short on time, so this is a holding page for now as we gather together the information and decide together how to tell this story.
You might find these presentations by Diamond Ashiagbor and David Mead useful in the meantime.
- Diamond, a Professor of Labour Law at the University of Kent, explains the features of contract law that have enabled employers’ aggressive tactics on disproportionate pay deductions. She argues that we need to take legal action in order to stop them crystallising as a practice and weakening trade union capacity to engage in industrial action. Watch the short ten-minute recording here.
- David, a Professor of Human Rights Law at the University of East Anglia, explains the human rights routes that are available for challenging disproportionate deductions, and the direct and indirect ways that claimants might raise human rights arguments when contesting pay deductions for ASOS. Watch the short, 10-minute recording here.
Diamond and David came to speak to us at our second Docked Pay, No Way teach-out on 1 March 2022, and we are grateful to them for sharing their expertise and experience in the best traditions of public legal education.
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