University workers and ASOS deductees respond to proposed legal change in clause 63 of the Employment Rights Bill 2024-25

Since we were first exposed to the threat of punitive ASOS deductions in January 2022 we have taken different actions – industrial, legal, institutional, educational – to defend ourselves. Our aim has always been to turn our experience of impoverishing wage deductions into freedom from employer detriment for everyone. This blog explains some of the legal steps we have taken in this struggle, and why it is vital that trade union members everywhere take action to support, and strengthen, the proposed statutory right to be free of detriment for trade union activities, including different forms of industrial action.  

University employers have become aggressive in the use of disproportionate wage deductions for action short of a strike (ASOS) in a legal context where there is a gap in protections for workers when they take industrial action and face detriment short of dismissal from employers. As care worker Fiona Mercer discovered, the current statutory framework (section 146 of TULRCA 1992) is deficient for the purpose of enabling workers to exercise their rights to assemble and take action as trade unionists under Article 11 ECHR. This is why the national union’s legal department has tended to focus on the legal strategy of supporting ASOS deductees in taking breach of contract claims to the country courts, where there is evidence of the employer having accepted the partial performance of the employment contract.    

The legal landscape is changing however as the Labour Government moves to adopt the Employment Rights Bill and to recognise a right to be free of detriment for industrial action in clause 63. This reform presents an important opportunity to ensure that disproportionate wage deductions for ASOS are explicitly recognised as one kind of unlawful detriment for industrial action in future. As university workers who have been subjected to brutalising pay deductions (including 100% of our wages) for days, weeks and months, even though we were working and engaged in lawful industrial action, we welcome the opportunity to share our experience on the need for legal change. 

In this response, we first summarise our key recommendations, second, explain the experiential expertise that is the basis for these recommendations and analysis, third, outline the kind of legal reform that is currently on the table, and fourth, discuss why and how this reform could be improved. 

  1. 1. Deductees’ Recommendations for next legal steps 
  2. 2. Deductees’ Expertise by Experience
  3. 3. The proposed legal reform on the table
  4. 4. Deductees’ response to the proposed reform
  5. Further information:

    

1.1 To secure workers’ rights not to be subjected to detriment short of dismissal for taking industrial action, including where such detriment takes the form of disproportionate wage deductions for action short of a strike. We endorse the proposed reform contained in clause 63 of the Employment Rights Bill (pdf) for the purposes of amending the Trade Union and Labour Relations (Consolidated) Act 1992 (TULRCA). Clause 63 proposes that the following subsection s 263A be adopted in TULRCA:   

“(1) A worker has the right not to be subjected as an individual to detriment of a prescribed description by any act, or any deliberate failure to act, by the worker’s employer, if the act or failure takes place for the sole or main purpose of preventing or deterring the worker

from taking protected industrial action, or penalising the worker for doing so.”

1.2 To remove the words ‘of a prescribed description’ from clause 63 in order to prevent unnecessary limitations on the general prohibition of detriment. The proposal to legislate for a worker’s right to be free of detriment for taking industrial action should make a clean break from the current harmful situation of inadequate legal protection. This is best achieved by adopting a general prohibition of detriment for taking industrial action in the primary legislation, rather than by making the prohibition dependent on further prescription in the secondary legislation, as the current iteration of clause 63 does (see 4.2 below). This could be done by removing the limiting words ‘of a prescribed description’ from the statutory provision. 

1.3 To adopt regulations (secondary legislation), which specify that disproportionate ASOS deductions are a kind of detriment covered by the general statutory prohibition (see 4.4 below).  

1.4 To extend the period of time during which claimants are permitted to make a legal claim of detriment (and other violations of trade union rights) from 3 to 12 months (see 4.9-10 below). 

We welcome the Bill’s extension of relevant time limits from 3 months to 6 months. However we believe a 12 month time limit is preferable. This would ensure consistency with the 12 month time limit for human rights claims under s 7(5)(a) of the Human Rights Act 1998. It would also be more appropriate given the difficulties which claimants face in gathering evidence, getting legal support, and challenging powerful employers with teams of lawyers.

 

2. Deductees’ Expertise by Experience

2.1 We are university workers and members of the University and College Union (UCU) who have had disproportionate wage deductions for action short of a strike in 2022 and 2023 (e.g.  (100% deductions for 5-30% labour withdrawn). These punitive deductions left members facing hardship and weakened our ability to take action collectively to improve pay and working conditions for all. Some of us had over 50 days of wages taken out of our pay packets over 4-5 months for the lawful withdrawal of no more than a few days work. We had to crowdfund in order to supplement national union funds and make sure that our members were able to pay rent and food bills when taking industrial action. 

2.2 We have watched our employers grow emboldened in expanding their use of wage deductions to punish and deter us from taking industrial action (see 3.5 of UCEA members guide to negotiations, obtained as FOI by The Association of Precarious Postdoctoral Researchers Ltd pdf) in a sector that is notorious for poor management, precarious employment and poor working conditions. When once there was outrage when employers took a day’s wages for withdrawal of half a day’s work, now taking days, weeks, and months of wages has become normalised in the name of ‘protecting student education’. It is clear that deductions do not actually protect student education (see 4.8 below). The sector is approaching crisis point, with morale at an all time low and over 80 universities facing redundancies or restructures. 

2.3 Our efforts to seek legal accountability for the injustice of disproportionate pay deductions have consistently met with obstacles. When we submitted grievances complaining about the punitive and disproportionate nature of these deductions, we were told that such wage deductions were a matter of collective bargaining and were not eligible for individual grievance. When we sought legal advice and support through our union and elsewhere, we found that the current legal framework does not give workers adequate protection against such deductions as a kind of detriment for trade union activities. This results from ‘the Mercer gap’ in human rights law (which recognises, but does not remedy, the failure to protect against detriment short of dismissal as a breach of human rights; see para 4.5 below) and the employer-favouring status quo in contract law (Bogg and Ford 2022). 

2.4 Nonetheless, we are working to apply and expand the legal protections that do exist (Mead 2023, 2022; Bogg and Ford 2022) for workers who have been, and may be, subjected to such detriments (see Dinnen v QMUL ET 2024; QMUCU comment). We are supporting individual members and working with the UCU legal team in taking legal action against disproportionate ASOS deductions on a variety of legal grounds that tackle different parts of the problem. These grounds include arguments that such deductions amount in practice to failure to pay branch officers for time off (s169 TULRCA 1992), prohibited detriment (s146 TULRCA 1992), blacklisting (Regulations 2010: 9; Morais v Ryanair [2025] EWCA Civ 19), less favourable treatment of part-time workers (Regulations 2000: 5), and that they are a breach of employers’ contractual obligations (Wiluzynski v Tower Hamlets [1986] ICR 483). We currently have three cases pending before the Employment Tribunal and further cases going to the County Court. 

2.5 We are aware of legal cases that other union members have begun with the support of their branch officers and caseworkers, but had to abandon due to lack of time, legal or financial support. Even if we are successful in whole or in part in getting the injustice of these deductions recognised in law, employers’ likely appeals to the higher courts could delay resolution for years. Legislative reform is clearly necessary in our view.  

We welcome the Labour government’s decision to consult on the kinds of detriment for participation in industrial action that should be prohibited as one element of reform on employment rights. We appreciate the support shown in the past by Angela Rayner, among others, for university workers who have been subjected to pay docking for action short of a strike. The current proposal aims to prohibit detriment through a combination of primary and secondary legislation, namely by adopting: 

1) a provision in the primary legislation i.e. s 236A (1) states that ‘A worker has the right not to be subjected as an individual to detriment of a prescribed description by any act, or any deliberate failure to act, by the worker’s employer, if the act or failure takes place for the sole or main purpose of preventing or deterring the worker from taking protected industrial action, or penalising the worker for doing so’  (emphasis added) and 

2) secondary legislation or regulations to prescribe ‘detriment of any description’, to be enabled by a new provision in TULRCA 1992, namely s 236A(4) (see clause 63 of the Employment Rights Bill).

The Government Bill has had a second reading in the House of Commons and been amended in Public Bill Committee (27 January 2025). The dates for the Report stage and third reading are not yet announced. The Bill may be amended at report stage with amendments selected by the Speaker.  

4. Deductees’ response to the proposed reform

4.1 We are strongly supportive of the general direction of this proposed reform, and encourage all parliamentarians to endorse and protect workers’ rights to be free of detriment for taking industrial action. This is a necessary protection in a free and democratic society, and is key to enabling workers to organise for decent pay and working conditions.  

4.2 We are concerned however that some of the language in the provision is overly limiting, and unnecessarily undermines the reform’s objectives. Therefore, we are recommending a minor amendment to the text of s 236A, as noted above. The use of the words ‘of a prescribed description’ in s 236A(1) has the effect of limiting prohibited detriments to those that are specifically described in subsequent regulations, rather than adopting a general stance against such detriments. Secondly, making a worker’s right (not to be subjected to detriment) dependent on the adoption of secondary legislation has the likely effect of delaying implementation and of weakening the right. Thirdly, experience of making detriment claims under s. 146 TULRCA has shown that limiting words can contribute to counter-intuitive and inconsistent interpretations, as the Court of Appeal noted in Morais v Ryanair [2025] EWCA Civ 19 (see 4.6 below). 

4.3 It is not clear yet, from the explanatory notes or elsewhere, why the drafters think this is the appropriate approach to take. If, as labour law experts Bogg and Ford suggest, the reason is because of a wish to preserve the legality of proportionate pay deductions for ordinary strike action, that is an objective that can be accommodated through the use of regulations to address that specific issue and does not require limiting of the generally stated right in the primary legislation. The legal problem is the use of disproportionate wage deductions, not proportionate wage deductions for labour withdrawn during industrial action, and the lack of a legal remedy.   

4.4 Rather we recommend that the reform take a clear opportunity to establish a clean break with the status quo, and send a clear signal that disproportionate wage deductions for exercising individual and collective rights under Article 11 ECHR are unlawful. The way to achieve this is straightforward and simply involves removing the words ‘of a prescribed description’ from the proposed statutory provision. This removes the limitation on the general right. Secondary legislation may be used in the normal way to provide further detail on the kinds of specific measures that are examples of detriment, including by distinguishing between proportionate and disproportionate wage deductions for industrial action. 

4.5 The need for such a clean break is evident in law and in fact. As a matter of law, the UK Supreme Court decided in Mercer [Secretary of State for Business and Trade v Mercer [2024] UKSC 12] that the prohibition of detriment for participation in trade union activities under s 146 TULRCA 1992 could not be read in a way which applied during industrial action. This meant that the statute was not compatible with domestically and internationally protected human rights, specifically Article 11 ECHR and the right to assemble individually and collectively as trade union members, as implemented and enforced by the Human Rights Act 1998. But in the absence of redress for the situation, the decision left a gap in protection for workers, the Mercer gap, because workers do not have a remedy for detriment during industrial action under section 146. Care worker and union representative, Fiona Mercer, won the argument of principle. The Supreme Court found that her rights had been violated when she was suspended and denied overtime in response to taking action on pay for night shift care workers. But she left the court without a practical remedy for that rights violation. 

4.6 The Court of Appeal recognised in Morais v Ryanair [2025] EWCA Civ 19 that this failure in s 146 is leading to inconsistent and counter-intuitive interpretations of different strands of employment law. In that case, pilots who had had their concessionary travel benefits withdrawn for a year in response to their lawful strike with BAPLA, were not able to bring a claim under s 146 TULRCA (because trade union activities here do not include industrial action).  But they were successful under the Blacklisting Regulations 2010 in getting the withdrawal of benefits recognised as an unlawful detriment in relation to a prohibited list under Reg 9 of the Blacklisting Regulations. ‘Activities of a trade union’ has its ordinary natural meaning of including strike action under the Blacklisting Regulations, but not under s 146 TULRCA. This inconsistency makes the legal terrain even more difficult for deductee claimants to negotiate especially when already at a disadvantage when challenging employers with teams of lawyers. 

4.7 And, as a matter of fact, university employers have shown repeatedly that they are willing and able to violate workers’ rights by making them endure actual and threatened detriments, such as days, weeks and months of pay deductions that far exceed the wage-value of the withdrawn labour. They will continue to prevent, deter and punish workers from taking forms of industrial action, which are necessary in order to bring employers to the table for collective bargaining, unless they are stopped from doing so. It is critically important to take action to face down punitive employers and to make punitive pay deductions unlawful. We are deeply concerned that the current situation is hollowing out trade union rights and having a chilling effect on trade union organising at a time when their members need them more than ever.

4.8 Furthermore, our experience has also shown that punitive deductions of wages only have the effect of damaging industrial relations further and needlessly escalating disputes. In response to 100% withdrawal of wages, UCU branches have had no choice but to repeatedly call further strike action against employers adopting these tactics, which has prolonged disruption to students and the sector. As with the decision to scrap Minimum Service Level provisions, which were introduced by the previous government with the stated aim of reducing the number of strikes but in fact led to their escalation, this Bill should also clamp down on rogue employer tactics such as punitive deductions which harm good industrial relations.

4.9 The short 3 month time limit on making a claim has contributed to difficulties with getting redress for unjust wage deductions. We are aware of many deductees who went to the trouble of making grievances against their university for deducting them for ASOS, were told their grievances were ineligible, and then found themselves out of time for the purposes of bringing a claim to the Employment Tribunal. At QMUL, 2023 deductees have learned from the difficulties experienced in seeking to challenge the 2022 cycle of deductions, and have supported timely claims to the ET in difficult circumstances. Nonetheless, part of one deductee’s claim was struck out for being out of time in Dinnen v QMUL 2024, as explained here. We are strongly of the view that time limits for employment rights claims need to be extended. 

4.10 We welcome the government amendment, which has extended relevant time limits from 3 to 6 months (see s. 263B in clause 63). We would go further however and extend the time limit to 12 months as a more reasonable amount of time for a claimant to come to a view about the merits of making the claim for their own redress and for the benefit of others. We know that legal processes are difficult and can in themselves be harmful for claimants whose personal experience is scrutinised and challenged. Claimants need time to process what has happened to them, to gather evidence and to seek legal advice and support in a context where time is already short due to overwork, commitments to union participation, and other everyday life activities. A 12 month time limit for employment rights claims would also be consistent with the 12 month time limit for human rights claims under s 7(5)(a) of the Human Rights Act 1998. 

In conclusion, as workers who have been left without a clear legal pathway for redressing the injustice of being subjected to harsh and disproportionate pay deductions for taking industrial action to improve pay and working conditions for all, we urge parliamentarians and members of the public to support and strengthen the current proposal in clause 63. This should be done by adopting a general rather than a specific prohibition of detriment for taking industrial action, by using regulations to provide a non-exhaustive list of examples of detriment including disproportionate pay deductions, and by extending the time limit for bringing a claim to 12 months. 

Further information:

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