The East London Employment Tribunal will be hearing two claims against deductions made at QMUL during the Marking and Assessment Boycott (MAB) that was part of Action Short of a Strike (ASOS) in 2023. The claims both involve deductions of 50+ days of wages, over £10,000 pounds, from UCU members who withdrew a few hours of work during a lawful national dispute over pay, inequality and working conditions in universities. 

The hearing is likely to begin with a private preliminary hearing on the 26th September 2024. We are a mere week away from that date, with people and papers to prepare, but we do not yet know if the hearing will be private or public, preliminary or substantive. This ‘justice’ system delays and delays, while requiring litigants to be timely and efficient in making their claims within 3 months of being harmed. If, as we expect, the hearing becomes a preliminary case management hearing it will likely decide on the time limits issue, and on the nature and scope of the substantive legal claims to be taken forward to a full hearing. 

The claimants’ legal grounds for redress are 1) that the deductions amounted to a failure to give trade union officials paid time off for carrying out trade union duties, and a breach of s 169 TULRCA 1992, and 2) that the making of ASOS deductions during that time involved the prohibited compilation of a ‘blacklist’. The employer went further than necessary in gathering information for the purpose of making pay deductions, including by apparently selecting some boycotters over others in an arbitrary and discriminatory manner. There is an important blacklisting-related case, Ryanair v Morais, due to be heard by the Court of Appeal in December 2024, so it is likely that the Employment Tribunal will wait until that is decided before having a substantive hearing on this issue.  

QMUL are likely to deny these claims and raise a third legal argument: 3) that part of the claim is ‘timed out’ of the 3 months time limit, since the 5 periods of deductions from July to November 2023 were made in a discontinuous series. If each one of the 5 periods of 21 days of deductions counts as a separate incident, it is only the more recent rounds of deductions that fall within the 3 month time limit. From the deductees’ perspective however, the deductions were experienced as one ongoing and cumulative harm. QMUL management chose to inflict deductions over 5 months with each cut of a deduction exacerbating the previous one and constituting the whole ‘incident of harm’ from which the 3 month time limit runs. 

Deductees and their allies have previously raised the possibility of bringing another kind of ET claim: that the deductions amount to a prohibited detriment for participation in trade union activities under s 146 TULRCA 1992. But since the Supreme Court decided in Mercer [2024] UKSC 12 that s 146 did not apply to detriment suffered during periods of industrial action, deductees will have difficulty relying on that statutory section for a remedy at the moment. However, the Supreme Court also declared that the failure to provide for a remedy in such situations of detriment experienced during industrial action meant that the legislation was not rights compliant (see further here). 

We hope that the Labour Government will move to address this gap in legal protection for workers when they reform the Tories’ anti-strike legislation. In the meantime, those who have the least power in the workplace, and in the justice system, continue bravely to organise and change the legal landscape for labour, including by going to tribunals and courts. These claims of breach of trade union rights in the Employment Tribunal are being supported by the UCU legal service. They will be proceeding alongside other UCU supported breach of contract claims. We would like to acknowledge all the work, paid and unpaid, that union case-workers, legal support officers, lawyers, and administrators do everyday to work with potential and actual litigants to hold employers’ economic and emotional violence to account.

Everyone can play their role by spreading the word and doing what you can to support case work and campaigning in your union. We will not allow employers to use the language of inclusivity to mask the everyday violence of disproportionate pay deductions and other attacks on workers.   

UPDATE: we won on timeliness! See this blogpost on timeliness.

For more on our work around Community Legal Knowledge, read this blogpost.