Gillian Keegan announces “minimum service levels” in universities

What was a surprise was an intention to consult on minimum service levels in universities in the wake of a prolonged period of strikes:

Many will still want to go to university and that will be the right choice for them, and if they do they should get the education that they paid for, that is common sense, right?

Apparently not, because over recent years we have seen constant strikes, we have students not getting the education they paid for, and some not even having their degrees marked. This is outrageous behaviour.”

Today, I am announcing that we will consult to introduce minimum service levels in universities, so that they have the tools to make sure that students get the teaching that they deserve.”

She’s referring here to powers in the Strikes (Minimum Service Levels) Act, which aims to balance the ability to strike with the rights and freedoms of others to “access key public services” during periods of strike action.

Under the legislation, when minimum service levels are in force for a “specified service”, if the relevant trade union gives notice of strike action, employers can issue a “work notice” ahead of the strike.

That has to specify the workforce required to maintain “necessary and safe” levels of service. Employers have to consult with the relevant union(s) on the number of persons and the work to be specified in the work notice – and take their views into account before issuing the work notice.

UCU’s Jo Grady has already issued her view:

‘This is a spiteful attack on workers everywhere from a party that has run out of options and will soon be run out of office. We will not stand by while Tory MPs try to force our members to cross their own picket lines.The recent strike action on campus is a direct result of the market-driven dogma of successive Tory governments. They have created funding inequalities across the sector and encouraged university leaders to act as intransigent CEOs. UCU will use every means at our disposal to fight these threats to our fundamental freedoms alongside the whole union movement.

And naturally UCEA has a view too:

While HE institutions respect employees’ right to take lawful industrial action, we recognise the significance of this consultation and we will provide a considered response. Although the impact of the marking and assessment boycott (MAB) was limited and isolated, this is of little comfort to those students whose progression or graduation was disrupted and this should never be an outcome of any industrial dispute. UCEA and our members always study such proposals carefully before responding, but our current priority is working constructively with the unions* on a number of vital pay-related matters including the review of the pay spine, workload, contract types and further action to reduce the already falling pay gaps in the sector.

Reasonable steps?

Over the summer the government has been consulting on a Code of Practice on the “reasonable steps” that unions will have to take to ensure members who are identified on the work notice on a strike day do not take part and comply with said work notice – or else face certain liabilities in tort.

If a trade union fails to take reasonable steps, the employer can seek damages from the union or an injunction to prevent the strike action taking place. That consultation closes on Friday, and as drafted contains all sorts of draconian stuff:

• The union must identify its members who are subject to the work notice;
• They must encourage those members to go to work;
• Members must be informed more generally (ie unions should encourage members to support their colleagues who are being forced against their will to work);
• Picket supervisors will have to be instructed to ensure that those subject to a work notice can get to work;
• And the union will have to provide “assurance – that’s code for ensuring the union doesn’t “encourage” whilst also doing some surreptitious discouraging.

It’s also been consulting on the actual minimum services that might apply in hospital services – last month the Department of Health and Social Care (DHSC) opened an exercise on minimum service levels that will apply in England, Scotland and Wales, to protect patient safety in key hospital services during strike action.

That’s right – the Act applies to “Great Britain” and so an MSL for higher education would cut across the otherwise devolved nature of education policy in Wales and Scotland – albeit that the government will have a duty to consult with other governments before making the relevant regulations.

Life or death?

The preliminary proposal in that healthcare consultation would require some hospital staff to work during strikes to ensure that “essential and time-critical care” can continue during periods of strike action, for those who need care.

If we were to take the framing of what will and won’t be covered by an MSL as a start point, there doesn’t feel like there’s much justification for an MSL in higher education at all – given neither teaching, supervision or marking feel like life or death issues:

The government believes that it is a legitimate and proportionate interference with the right to strike, because it is an ‘essential service’ which, if interrupted, would “endanger the life, personal safety or health” of the public. As such, we consider that the proposal strikes the right balance between the ability of workers to strike and the protection of others’ freedoms and rights.

We do though have some clues as to what will be in there from the Department for Education press release:

The consultation will focus on stronger protections for final year students, key cohorts or those studying specialist subjects. If introduced, the minimum service level could ensure students get the education they pay for, protecting them from strike action, for example looking at how to guarantee continued services such as teaching contact hours and marking their work during walkouts.

Of course once you think about even all of that for more than 5 minutes you end up with all sorts of headscratchers, precisely because the Act was almost certainly never designed for this kind of scenario. PGR students, PGT students, FE in HE, “marking” on a given day, exam boards and the students who don’t pay fees in Scotland all spring to mind. Will learners on a single module in the LLE count? And so on. The consultation, as and when it comes, will be fascinating to see.

The education they pay for

There’s also a very odd interaction here with consumer protection law, which is already supposed to ensure that students get the education they pay for.

That’s a regime that has pretty much failed to protect students from the impacts of industrial action – and it’s notable that almost every university in the country continues to maintain in their Ts and Cs that strikes are an unpredictable and unresolvable “act of god” to absolve themselves of liability, in seeming direct contradiction of Competition and Markets Authority guidance.

If the regime applies university by university, and said university failed to put an MSL in place, it would surely be in breach of contract regardless of whether its “force majeure” clause partially let it off the hook for partial, poor or non-delivery. And the resultant interactions between all of this and both regulators and complaints regimes will also need some picking apart.

In theory it also puts NUS and SUs in a bit of a bind – we might expect the former to condemn on the basis of solidarity and the right to strike, but the prospect of student representative organisations not backing students getting what their members students paid for while still allowing staff to cause disruption to management is going to feel very odd indeed – and harder than it might look for Labour to repeal, if we get that far.

Oh, and don’t get me started on the one minute they’re “free floating (and, I might add, charitable and independent of government) providers” and the next minute they’re “essential public services controlled by government” thing or I might melt.