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The 2006 higher education pay dispute: the reality of partnership rhetoric?

Published online by Cambridge University Press:  02 January 2018

Tonia Novitz
University of Bristol
Charlotte Villiers
University of Bristol


The rhetoric of partnership appears to have played a central justificatory role in policy change and law reform during the past decade, especially in the field of industrial relations. We investigate in this paper its implications for higher education. We do so in the context of the 2006 pay dispute with reference both to recent developments in the higher education sector and to the legal framework within which the dispute was conducted. We argue that despite the government’s suggestion that this was only a dispute between universities as employers and their employees, its particular version of partnership shaped the contours of the dispute and determined its outcome.

Research Article
Copyright © Society of Legal Scholars 2007

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47. See in support of this emergent practice, A Oswald Paying Vice-Chancellors Sensibly, available at: For media coverage, see A Goddard and O Wojtas ‘Heads enjoy 100% rise in pay over ten years’ The Times Higher Education Supplement (THES) 25 February 2005; and M Taylor ‘Rise in vice-chancellors’ salaries adds to anger among lecturers’ The Guardian 9 March 2006.

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54. Tony Blair, speech on the Higher Education Bill at Institute for Public Policy Research, 14 January 2004, available at

55. Hansard HC Deb, vol 429, col 993, 29 April 2004.

56. This unified system replaced the ten previous negotiating bodies for this sector. See for the original JNCHES Agreement of 2001, the website available at

57. Joint Negotiating Committee for Higher Education Staff (JNCHES), Framework Agreement on the Modernisation of Pay Structures, Preamble, available at See also Institute for Employment Studies Working in Partnership in Higher Education: Final Report – A Report for JNCHES (November 2005).

58. See, eg, the ‘partnership agreement’ between UNISON and Robert Gordon University, available at

59. P Baty and T Tysome ‘Local deals on cards as V-Cs round on UCEA’ THES 21 April 2006. See also the website available at

60. See letter of 8 September 2005 from Malcolm Keight, Secretary of trade union side of ASSC to Dr Geoffrey Copland, Chairman, UCEA, available at The original pay claim submitted in October 2005 is available at and The extended pay claim of December 2005 is available at

61. UCEA Briefing, 26 April 2006, available at

62. For AUT guidelines, see the website available at; while for NATFHE, see the website available at

63. L Hodges ‘Students break rank with NUS over academics pay dispute’ The Independent 20 April 2006.

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66. See press releases of 19 January 2006, available at; of 9 March 2006, available at; and of 21 May 2006, available at

67. See the website available at

68. See as to the AUT’s response to the alleged secret briefing of the media by UCEA, the website available at As to the official briefing provided by UCEA, see the website available at

69. See the joint statement made by NUS, AUT, EIS and NATFHE, available at

70. Hodges, above n 63; and J Shepherd ‘Huge student “no” to boycott’ THES 5 May 2006.

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73. Hansard HC Deb, vol 444, col. 397W, 22 March 2006.

74. Hansard HC Deb, vol 445, col 1116, 4 May 2006.

75. Both in terms of negotiations over the application of a single pay spine and trade union recognition agreements, as regards which see the website available at Joint Negotiating Committee for Higher Education Staff (JNCHES), Framework Agreement on the Modernisation of Pay Structures, Preamble, available at

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77. Hodges, above n 63; and E Williams ‘No celebration this year’ The Guardian 6 June 2006.

78. TULRCA 1992, s 224.

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80. Hansard HC Deb, vol 444, col 397W, 22 March 2006.

81. A Blair ‘Universities to dock pay of lecturers who boycott exam duties’ The Times 12 May 2006.

82. The courts have in recent years ‘given conflicting answers’ to questions related to potential deduction of salary for partial performance of work by employees; see G Morris ‘Deductions from pay for industrial action’ [1987] ILJ 185. As Vivien Shrubsall also later observed, the basis of assessment of the remuneration due when the employer accepts partial performance ‘is the cause of continuing confusion’: [1989] ILJ 241 at 243. In the present dispute, the fact that a correction was made in The Guardian newspaper relating to a commentary on the possibility of pay deduction illustrates the continuing confusion in this area; see M Keating ‘Can your boss dock your pay?’ The Guardian 20 May 2006, followed by a correction on 24 May 2006.

83. These common law principles are understood to apply only to those who may be regarded as an ‘employee’, rather than merely those who come within the statutory definition of a ‘worker’. See for a very useful analysis of this false duality and its inherent difficulties, Freedland, MRF The Personal Contract of Employment (Oxford: Oxford University Press, 2003)Google Scholar, ch 1. In this context, we regard the vulnerability of university lecturers as arising both by virtue of their status as employees and workers.

84. Simmons v Hoover[1977] QB 284. See also Freedland, above n 83, p 480 et seq; and Ewing, K.D. The Right to Strike (Oxford: Clarendon Press, 1991 CrossRefGoogle Scholar ch 2.

85. This aspect of UK law is anomalous in contrast to other European states, where industrial action suspends the contract of employment and the right to strike receives constitutional protection, as noted by Freedland, ibid. See also Clauwaert, S. Fundamental Social Rights in the European Union: Comparative Tables and Documents (Brussels: European Trade Union Institute, 1998).Google Scholar

86. Ticehurst v British Telecom [1992] ICR 383.

87. [1987] Ch 216.

88. [1987] IRLR 193.

89. Per Lord Templeman at 199; per Lord Brightman at 195.

90. At 195.

91. Morris, above n 82, at 188.

92. [1989] IRLR 259.

93. See, eg, the threatened lock-out at Oxford Brookes University, noted at; as regards threats to withdraw all pay at Bournemouth and Northumbria universities, see the website available at

94. At 262. Shrubsall also suggests that the union would not have chosen this action ‘if it was to be a minor irritant only’: above n 82, at 242.

95. Mead, G. Restitution within contract?’ (1991 11 LS 172 Google Scholar at 179.

96. See European Committee of Social Rights Conclusions (Strasbourg: Council of Europe, 2001 Google ScholarPubMed XV-I, pp 254–257; and paras 595 and 570–574. The findings of the ECSR and ILO supervisory bodies lack formal legal status and are seldom cited in the UK courts, but do receive judicial attention from the European Court of Human Rights. See, eg, Wilson, National Union of Journalists and Others v United Kingdom (2002 35 EHRR 20 at paras 30–37; and, most recently, Associated Society of Locomotive Engineers and Firemen (ASLEF v UK (Application No 11002/05 (unreported 27 February 2007 at paras 22–24.

97. For example, O Wojtas ‘Staff in boycott could be sued’ THES, 20 April 2006 reported that: ‘a legal expert has told The Times Higher that if the action continued beyond 12 weeks, universities could fire staff even if the industrial action was legal’.

98. Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455 (CA).

99. TULRCA 1992, s 238A.

100. P Baty and T Tysome ‘Local deals on cards as V-Cs round on UCEA’ THES 21 April 2006. See also the website available at

101. News release, Higher Education Employers Welcome Prospect of ACAS Involvement in Pay Dispute 16 April 2006, available at

102. TULRCA 1992, s 238A(7D).

103. See TULRCA 1992, ss 237–238.

104. See, eg, Smith v Hoyle Town Council [1978] IRLR 413 (CA).

105. R Butt ‘Students plot revenge’ The Guardian 30 May 2006.

106. H Swain ‘The rise of the not-so-silent partner’ THES 9 June 2006.

107. These include the torts of direct and indirect inducement of breach of contract, unlawful interference with performance of a contract, inducement of breach of statutory duty, intimidation and conspiracy. See Wedderburn, Lord The Worker and the Law (London: Pelican, 3rd edn, 1986 Google Scholar ch 7; and also

108. TULRCA 1992, ss 219 and 244.

109. See, in particular, reforms made by the Employment Acts of 1980, 1984, 1988 and 1990, which were incorporated into TULRCA 1992. See Davies, P. and Freedland, M. Labour Legislation and Public Policy (Oxford: Oxford University Press, 1993 Google Scholar ch 9. Note also the amendments made to TULRCA 1992 by the Trade Union Reform and Employment Rights Act 1993 ((TURERA 1993), discussed in

110. See above n 21 and the current wording of TULRCA 1992, s 232B, following amendment by the Employment Relations Act 2004.

111. Falconer v ASLEF and NUR [1986] IRLR 331.

112. TULRCA 1992, s 235A.

113. See TURERA 1993, which inserted ss 235A–C into TULRCA 1992.

114. Employment Relations Act 1999, s 28.

115. FAW, above n 7, para 4.31. See also Novitz and Skidmore, above n 13, pp 55–58.

116. Simpson, B. The labour injunction, unlawful means and the right to strike’ (1987 50 Modern Law Review 506.Google Scholar See also Novitz and Skidmore, above n 13, pp 136–147.

117. See above; ‘UEA V-C threatens staff with legal bills’ THES 26 May 2006; and, eg, the message sent by the University of Sussex Vice-Chancellor’s Office to academic and academic-related staff, available at

118. Ian McCartney, then Minister of State, Department of Trade and Industry, House of Commons Standing Committee E, discussing the Employment Relations Bill, 9 March 1999, available at

119. See AUT briefing for external examiners, available at:

120. P Baty ‘Examiners prepared to resign’ THES 9 June 2006.

121. See above n 28.

122. Towards a Trade Union Freedom Bill p 10, available at

123. See Freedom of Association, above n 96, para 570.

124. Jobseekers Act 1995, s 20.

125. Conduct of Employment Agencies and Employment Businesses Regulations 2003, SI 2003/3319, reg 7.

126. R Blouin ‘Replacement workers: minority opinion in Canada Labour Code Part I Review: Seeking a Balance (1996), available at

127. See the statement of the Quality Assurance Agency, established in 1997: ‘Our mission is to safeguard the public interest in sound standards of higher education qualifications and to inform and encourage continuous improvement in the management of the quality of higher education. We do this by working with higher education institutions to define academic standards and quality, and we carry out and publish reviews against these standards’; available at

128. See the discussion by Milliken and Colohan, n.33 above.

129. TULRCA 1992, s 238A(1).

130. Ibid, s 238A(6 and s 238B.

131. See copy of letter from Sally Hunt to vice-chancellors over pay deductions, available at; and advice on unlawful pay deductions, available at

132. See the AUT official advice, available at

133. See, eg, the statement on the AUT website, available at

134. F Beckett ‘Row over pay will test new union’s joint leadership’ The Guardian 6 June 2006.

135. P Baty ‘Rank and file accuse union negotiators of selling out’ THES 16 June 2006.

136. P Baty ‘Poll predicts close pay vote’ THES 16 June 2006.

137. See the website available at

138. See Guardian leader, ‘Degrees of uncertainty’, 19 May 2006, available at,,1778500,00.html

139. F Cownie Legal Academics: Culture and Identities (Oxford: Hart Publishing, 2004 pp 111–118.

140. TULRCA 1992, s 65(2)(a).

141. Hansard HC Deb, vol 419, col 1350, 29 March 2004. See, eg, ILO Committee of Experts on the Application of Conventions and Recommendations Individual Observation concerning Convention No 87, Freedom of Association and Protection of the Right to Organise, 1948 United Kingdom (ratification: 1949) (2005), which states explicitly that ‘unions should…be able to determine whether or not it should be possible to discipline members who refuse to comply with democratic decisions to take industrial action’, available at

142. See UCEA Press Release ‘Academic unions agree to pay offer’, available at This was approved by a substantial majority of UCU members, in respect of which, see the website available at The margin was much narrower for EIS members, in respect of which see the website available at

143. See commentary on the pay deal available at

144. THES leader ‘Work together or keep on failing’ THES 21 July 2006.

145. See R Kline ‘Clarity of purpose and breadth of experience’ The Guardian 5 July 2006.

146. P Baty ‘Pay deal could mean job losses’ THES 9 June 2006.

147. P Baty and T Tysome ‘Local deals on cards as V-Cs round on UCEA’ THES 21 April 2006. See also the website available at

148. A Smith ‘Employers reach “end of the road” in pay dispute’ The Guardian 1 June 2006 quoted the chief executive of UCEA, Jocelyn Prudence, as saying: ‘We have come to the end of the road in the national negotiations…There really isn’t anything more that is achievable at national level’.

149. S Hunt ‘No big deal: it’s true, the pay deal is not enough – but it’s a start’ The Guardian 13 June 2006.

150. M McVicar ‘Beyond dispute’ The Guardian 25 July 2006.

151. Institute for Employment Studies Working in Partnership in Higher Education: Final Report – A Report for JNCHES (November 2005).

152. Institute for Employment Studies Joint and Partnership Working: Toolkit for Higher Education Institutions (JNCHES, August 2006).

153. For an account, see F Burchill ‘The road to partnership? Forcing change in the UK further education sector; from “college incorporation” and “competition” to “accommodation and compliance”?’ (2001) 23 Employee Relations 146.

154. Ibid, at 161.

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