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Published online by Cambridge University Press: 02 January 2018
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.
6. Heery, above n 2, at 21.
7. Fairness at Work Cm 3968, 1998 (FAW).
9. See the websites available at http://www.partnership-institute.org.uk/ and http://www.tuc.org.uk/partnership/index.cfm?mins=51.
10. Ackers and Payne, above n 3, at 532.
12. See FAW, above n 7, ‘Foreword’ and para 4.6.
13. For comment, see Novitz, T. and Skidmore, P. Fairness at Work: A Critical Analysis of the Employment Relations Act 1999 and its Treatment of Collective Rights (Oxford: Hart, 2001 pp 6–7 Google Scholar and 15; also at 195–198.
14. Heery, above n 2, at 21.
15. Lucio and Stuart, above n 11, at 416.
18. FAW, above n 7, para 4.3.
20. Trade Union and Labour Relations Act 1992 (TULRCA 1992), Sch A1. As regards which and its limitations, see Wedderburn, Lord Collective bargaining or legal enactment: the 1999 Act and union recognition’ (2000 29 ILJ 23 CrossRefGoogle Scholar; ; Novitz and Skidmore, above n 13, ch 4; and ; Smith and Morton, above n 17, at 408–409. The recent Central Arbitration Committee CAC Annual Report 2005–2006 (CAC, 2006 p 19, available at http://www.cac.gov.uk/cac_2_annual_report/Reports/FinalCACAnnualReport2005-2006.pdf, indicates that 502 applications had been made for statutory application as at the date of publication, of which 142 were successful.
21. TULRCA 1992, s 232B.
22. Ibid, s 238A.
23. Ibid, s 65(2)(a).
24. Hansard HL Deb, vol 660, col 902, 29 April 2004. Cf comments of Lord Triesman, Hansard HL Deb, vol 660, Col 928, 29 April 2004.
25. Employment Relations Act 2004, s 26, amending TULRCA 1992, s 238A.
26. Hansard HC Deb, vol 419, col 1350, 29 March 2004.
27. Hansard HL Deb, vol 662, col GC127, 9 June 2004. Lord Triesman was formerly General Secretary of the AUT from 1993 to 2001.
28. See also the website available at http://www.tuc.org.uk/extras/TUFB.pdf. At the time of writing, the Private Members Bill is due to be presented by John McDonnell MP on 2 March 2007.
30. Ibid, at 95–96.
31. DD Dill Will Market Competition Assure Academic Quality?: An Analysis of the UK and US Experience (University of North Carolina College of Arts and Sciences, 2005 p 2, available at http://www.unc.edu/ppaq/docs/Market%20Regulation.doc.
32. Ibid, p 5.
36. Stilwell, above n 35, at 53.
37. See for discussion of these issues, Harley, S. The impact of research selectivity on academic work and identity in Uk universities’ (2002 27(2 Studies in Higher Education 187 CrossRefGoogle Scholar; ; and P Hare The UK’s Research Assessment Exercise: Impact on Institutions, Departments, Individuals Paper Produced for Organisation for Economic Cooperation and Development Conference (2002), available at http://www.sml.hw.ac.uk/ecopgh/OECD%20Paper,June02.pdf.
38. There has, eg, been closure of chemistry departments in University of Exeter, King’s College and Queen Mary in London, and the University of Wales, Swansea, discussed at http://www.npc.org.uk/page/1142350661. See as regards the closure of the physics department at the University of Reading, the website available at http://news.bbc.co.uk/1/hi/education/6159106.stm. For recent comment, see D Clery ‘ “Darwinian” funding and the demise of physics and chemistry’ (2005 307 Science 668, available at http://www.sciencemag.org/cgi/content/full/307/5710/668?ck=nck.
39. See Bryson, above n 34.
41. Court, S. Academic tenure and employment in the Uk’ (1998 41 Sociological Perspectives 767 CrossRefGoogle Scholar at 771. See s 202(2): ‘In exercising those functions, the Commissioners shall have regard to the need—(a to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions’.
42. Stilwell, above n 35, at 53.
43. Ibid, at 53.
44. Milliken and Colohan, above n 33, at 383.
45. Ibid, at 384.
46. Stilwell, above n 35, at 54.
47. See in support of this emergent practice, A Oswald Paying Vice-Chancellors Sensibly, available at: http://www2.warwick.ac.uk/fac/soc/economics/staff/faculty/oswald/payingvice.pdf. 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.
48. Bekhradnia, B., Whitnall, C. and Sastry, T. The Academic Experience of Students in English Universities (Oxford: Higher Education Policy Institute, 2006).Google Scholar
49. Stilwell, above n 35, at 58.
51. Stilwell, above n 35, at 58.
53. Parker, M. and Jary, D The McUniversity – organization, management and academic subjectivity’ (1995 2 Organization 319 CrossRefGoogle Scholar at 321. Quoted by Bryson, above n 34, at 41, who is doubtful that the university sector has quite reached this stage, but acknowledges that this might be the future for academia. See also ; and
54. Tony Blair, speech on the Higher Education Bill at Institute for Public Policy Research, 14 January 2004, available at http://www.aut.org.uk/index.cfm?articleid=1341.
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 http://www.natfhe.org.uk/?id=97&entityType=Document.
57. Joint Negotiating Committee for Higher Education Staff (JNCHES), Framework Agreement on the Modernisation of Pay Structures, Preamble, available at http://www.natfhe.org.uk/?id=90&entityType=Document. 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 http://www.rgu.ac.uk/files/UNISON%20Agreement2005%20Rev%201.doc.
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 http://www.aut.org.uk/media/pdf/o/6/aut_localoffers_5may06.pdf.
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 http://www.natfhe.org.uk/?entityType=Document&id=708. The original pay claim submitted in October 2005 is available at http://www.aut.org.uk/media/pdf/h/4/payclaim2006.pdf and http://www.natfhe.org.uk/?entityType=Document&id=707. The extended pay claim of December 2005 is available at http://www.aut.org.uk/media/pdf/4/5/payclaim2006_expansion.pdf.
62. For AUT guidelines, see the website available at http://www.aut.org.uk/index.cfm?articleid=1523; while for NATFHE, see the website available at http://www.natfhe.org.uk/?entityType=Document&id=839.
63. L Hodges ‘Students break rank with NUS over academics pay dispute’ The Independent 20 April 2006.
64. AUT press release, ‘Union fury as employers ban unions from pay dispute talks’, available at http://www.aut.org.uk/index.cfm?articleid=1583. For the UCEA view that they were offering negotiations within 48 hours of any subsequent suspension of industrial action and had always made it clear that they would not talk while any industrial action was ongoing, see the website available at http://www.ucea.ac.uk/index.aspx?ContentId=79&bc=Consultations&p=Consultations.
65. See the websites available at http://www.aut.org.uk/index.cfm?articleid=1682 and http://www.durham21.co.uk/archive/archive.asp?ID=3124.
68. See as to the AUT’s response to the alleged secret briefing of the media by UCEA, the website available at http://www.aut.org.uk/media/pdf/n/o/uceasecretbriefriposte.pdf. As to the official briefing provided by UCEA, see the website available at http://www.ucea.ac.uk/documents/12_pay/uceauukbriefing.pdf.
69. See the joint statement made by NUS, AUT, EIS and NATFHE, available at http://www.natfhe.org.uk/temp_downloads/y27n104q18g115n49n19a12g100g9k147c87t69b91s24m51/stand.pdf.
70. Hodges, above n 63; and J Shepherd ‘Huge student “no” to boycott’ THES 5 May 2006.
71. UCEA press release, ‘Select Committee members probe unions on decision not to ballot’ (17 May 2006), available at http://www.ucea.ac.uk/documents/3_news/nr170506.pdf.
72. A Smith ‘University employers apologise for misleading comments’ The Guardian 24 May 2006; see also BBC News University Bosses Stir MP’s Wrath, available at http://news.bbc.co.uk/1/hi/education/4991352.stm.
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 http://www.rgu.ac.uk/files/UNISON%20Agreement2005%20Rev%201.doc. Joint Negotiating Committee for Higher Education Staff (JNCHES), Framework Agreement on the Modernisation of Pay Structures, Preamble, available at http://www.natfhe.org.uk/?id=90&entityType=Document.
77. Hodges, above n 63; and E Williams ‘No celebration this year’ The Guardian 6 June 2006.
78. TULRCA 1992, s 224.
79. For recent analysis, see McCammon, H ‘Labor’s legal mobilization: why and when do workers file unfair labor practices?’ (2001 28(2 Work and Occupations 143.CrossRefGoogle Scholar Note that this concept has now entered UK labour law in relation to trade union recognition disputes, but not as regards industrial action. For which, see the Employment Code of Practice (Access and Unfair Practices during Recognition and Derecognition Ballots Order 2005, SI 2005/2421, adopted under TULRCA 1992, s 203.
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’  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’:  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.
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  ICR 383.
87.  Ch 216.
88.  IRLR 193.
89. Per Lord Templeman at 199; per Lord Brightman at 195.
90. At 195.
91. Morris, above n 82, at 188.
92.  IRLR 259.
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.
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)  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 http://www.aut.org.uk/media/pdf/o/6/aut_localoffers_5may06.pdf.
101. News release, Higher Education Employers Welcome Prospect of ACAS Involvement in Pay Dispute 16 April 2006, available at http://www.ucea.ac.uk/documents/3_news/NR190406.pdf.
102. TULRCA 1992, s 238A(7D).
103. See TULRCA 1992, ss 237–238.
104. See, eg, Smith v Hoyle Town Council  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  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 http://www.sussex.ac.uk/Units/vcoffice/nationalpaydiscussions.shtml.
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 http://www.publications.parliament.uk/pa/cm199899/cmstand/e/st990309/am/90309s01.htm.
119. See AUT briefing for external examiners, available at: http://www.aut.org.uk/media/pdf/3/l/externalexaminers_may06.pdf.
120. P Baty ‘Examiners prepared to resign’ THES 9 June 2006.
121. See above n 28.
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 http://www110.hrdc-drhc.gc.ca/sfmc_fmcs/lcctr_tclcr/index_e.html.
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 http://www.qaa.ac.uk.
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 http://www.aut.org.uk/index.cfm?articleid=1525; and advice on unlawful pay deductions, available at http://www.aut.org.uk/media/pdf/h/m/deductions_autresponse.pdf.
132. See the AUT official advice, available at http://www.aut.org.uk/index.cfm?articleid=1556#abcol.
133. See, eg, the statement on the AUT website, available at http://www.aut.org.uk/index.cfm?articleid=1664
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.
138. See Guardian leader, ‘Degrees of uncertainty’, 19 May 2006, available at http://education.guardian.co.uk/specialreports/lecturerspay/story/0,,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 http://www.ilo.org/ilolex/english/newcountryframeE.htm.
142. See UCEA Press Release ‘Academic unions agree to pay offer’, available at http://www.ucea.ac.uk/index.aspx?ContentId=78&bc=Consultations&p=Consultations. This was approved by a substantial majority of UCU members, in respect of which, see the website available at http://www.ucu.org.uk/index.cfm?articleid=1764. The margin was much narrower for EIS members, in respect of which see the website available at http://www.eis.org.uk/pdffiles/ula%20ballot%20result%20-%20180706.pdf.
143. See commentary on the pay deal available at http://www.ucu.org.uk/media/pdf/r/4/he2006pay0ffer_commentary.pdf.
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 http://www.aut.org.uk/media/pdf/o/6/aut_localoffers_5may06.pdf.
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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