Industrial action: is the force with students this time?

Here we go again then. Fourteen planned days of strikes across 74 universities, along with plenty of ASOS and a warning of new ballots for a fresh mandate if the disputes aren’t settled.

Where do students fit this time round? Traditionally their SUs and NUS have supported the cause and the action. Meanwhile press articles featuring students demanding refunds for lost lectures when there’s a strike on are nothing new – and there have been plenty in the run up to the action again this time.  But things have changed since the introduction of fees back in 1999.

At home (at least in England), fees have “tripled”. The support surrounding students on many courses is pretty marginal. There are significantly more international students around, for whom arguments about solidarity with striking staff have to be balanced against losing what might amount to a major proportion of their sole PG teaching year charged at anything up to £30k.

The Competition and Markets authority have made clear that paying students have consumer rights, now at least partially adopted by an Office of the Independent Adjudicator increasingly concerned with raw fairness as much as procedural compliance. And we have an Office for Students that will be “working to inform students of the options available” to them to resolve issues that occur. As such, the response from universities is worth thinking about.

Adjudication

Following the protracted pensions dispute back in 2018, a threatened “class action” appeared never to materialise – but a handful of complaints did end up at the OIA, and there were two major headlines from the complaints fully or partially upheld.

The first was OIA drawing a difference between “academic disadvantage” – adjusting the rules so that (put simply) people weren’t tested on what they weren’t taught – and “learning disadvantage”. As independent adjudicator Felicity Mitchell put it at the time,

Some providers appear to have done nothing to make up for lost teaching on the basis that there is no contractual obligation to provide a specific number of taught sessions. They have argued with some vigour that students have suffered no loss provided they are not academically disadvantaged. The logical conclusion of that line of argument is that it doesn’t matter what you have taught your students as long as they come out with a degree at the end of it.

Having spent every other industrial dispute assuring students and their SUs that it was all fine because no student would be “academically disadvantaged”, it’s fair to say this came as a bit of shock in some (academic) registrars’ offices.

The second was a question over the use of “force majeure” clauses. This is wording buried in Ts and Cs that relieves a party from performing its contractual obligations when circumstances beyond its control arise – and the general principle is that the courts would expect a university to demonstrate that its force majeure clauses were fair and reasonable, that it had taken all reasonable steps to avoid the event from happening, and made reasonable steps to mitigate its effects on students. On “fair and reasonable”, again the OIA had a view here:

One clause was so wide that it would have allowed the provider to cancel an entire programme in the event of industrial action lasting a few days.

…and for those sorts of breaches, we note that a number of universities have changed their Ts and Cs since, and have also taken steps not to fall foul of CMA guidance that suggests that clauses like this might be “surprising” and should be “drawn to the attention” of students.

“Steps to avoid” is interesting, and at least in part explains Vice Chancellors’ smiley appearances on picket lines when the results of UUK and UCEA consultative ballots tell a different story. OIA was pretty quiet here on “steps to avoid”, and of course right now we don’t have any case law to tell us whether “it’s all UCEA/UUK’s fault” really works as a defence, and whether universities would have enough proof even it did in theory.

And (a lack of) mitigation was a problem for OIA too:

The other clause allowed the provider to delay teaching, but the provider had not made any attempt to deliver the missed teaching late.

Action in the run up to Christmas is one thing – the end of the academic year feels a long time away, and both students and their providers have plenty of time in which to “make up”. Some universities even introduced proactive compensation schemes – but were careful to frame as a payment for “distress and/or inconvenience during the strike days” rather than for actual lost teaching.

But escalation in the run up to the Easter break – beyond which very little actual teaching happens across the sector – is a different ballgame.

Is enforcement coming?

So what could happen next? Two “bursts” of industrial action in a single year will have wound lots of students up, who are much more likely these days to read The Tab than the latest motion passed by their SU. Plenty of SUs – most of whom usually back the UCU position – are this time also encouraging students to claim compensation and submit complaints, seeing no conflict between the two positions and indeed tactically hoping that financial pressure on universities will get the employers “back to the table”.

But what we also know is that aside from £100 tokens for “distress and/or inconvenience”, complainants are unlikely to be getting the “refunds” they’re asking for for lost teaching – usually calculated by dividing up the fee they’ve paid by the paltry number of contact hours. A number of universities have already reminded last term’s complainants that they had signed a force majeure clause last September – and therein lies the big risk.

The bigger the publicity, the more likely that at some stage a local trading standards office takes up the case, challenges a university’s “force majeure” clause and seeks an “enforcement order”. Maybe the Consumers’ Association as a “designated enforcer” will have a go instead. Or perhaps Alok Sharma – the new Secretary of State for Business, Energy and Industrial Strategy will use a statutory instrument to designate OfS as a “designated enforcer”, which could then try. Given a designated enforcer is a body “that has the protection of the collective interests of consumers as one of its purposes”, it seems extraordinary that this hasn’t already happened. OfS is already thinking about issuing (and enforcing) its own consumer law advice. Maybe a viable class action will emerge at some point – or a student will refuse to settle.

Fun and games

Whoever ends up in court, it’s then that the fun really starts. Universities would have to argue that they’re not in control of negotiations over their biggest bill – staffing – hardly a good look as debates over “value for money” rumble on. They’d also need to argue that “teaching” was really quite peripheral to the overall learning experience – and whilst it might be in terms of cost, it would hardly play well in the press (or, probably, the courts) for the Cinema sector to argue that a projectionists’ strike shouldn’t lead to refunds because cinemagoers could still enjoy the toilets, the posters, a warm dark room to sit in and “wider research investment in visual storytelling”.

And if “force majeure” can’t be relied on? The Consumer Rights Act would give students not getting the service (or getting an unreasonably delayed service) a statutory right to a price reduction, a right to require the university “to perform the service again”, “within a reasonable time” and “without significant inconvenience” – as well as a right to claim damages.

All of which leads me to think that any tactical decision on the part of universities to hold out in this dispute in the short term might well cost universities very dearly in the long term. And from the point of view of the students caught up in all this that will be saddled with a lifetime of extra income tax payments, that’s probably fair enough.