The 2023 marking and assessment boycott, explained

University staff have seen pay fall sharply in real terms over the recent inflationary peak – just as universities have seen income fall in real terms and the costs of doing business grow.

Under such circumstances, the ongoing industrial dispute over pay and conditions has been longer and more bitter than any in recent memory. The sector is currently facing a marking and assessment boycott that could affect the progression and qualification of many students.

But how did we get here? It’s a significant understatement to describe sector industrial relations as “complex” and “fractious” – and if you’ve not been following every twist and turn of the various letters, ballots, and statements issued by all those involved it is quite easy to get lost.

For that reason – as plainly and as clearly as is possible – I’ve attempted to set out an explanation of what is happening, what it means, and what might happen next.

What is this dispute about?

Earlier this year unions started industrial action on pensions (specifically USS pensions) and on conditions of employment issues better known as “the four fights” – pay, workload, equality, and casualisation. None of these issues are new to this particular industrial action – unions have been looking for significant movement here for a long time.

On USS, this dispute has now come to an end – with employers, unions, and USS trustees all agreeing that the forthcoming valuation of the scheme was likely (based on ongoing monitoring) to show a surplus, and that this should be used to reduce the level of contributions (for employers and employees) previously set in response to a valuation made in April 2020 – a point at which it is fair to say the state of wider economy was not representative of medium to long-term trends. Notably both employers and unions were unhappy with the 2020 valuation – which happened the way it did as a result of regulatory requirements. This is a rare but welcome success story in sector industrial relations.

On pay, in response to the cost of living crisis (particularly noting that a rise in inflation had eroded the value of salaries in real terms, and that many lower paid staff needed urgent support) university employers opened the 2023-2024 New JNCHES pay round earlier than usual, in December 2022. I’ve written about how this process works elsewhere. The initial union “ask” was a pay rise for all staff of the highest of RPI plus two per cent, or £4,000. As is generally the case with New JNCHES, the discussion ended up in the dispute resolution process – so meetings were convened at Acas.

What came out of that was a final UCEA pay offer that would see all staff get at least a five per cent pay rise in August 2023, with staff on lower points of the pay spine getting a eight per cent rise – this on top of standard salary progression (movement within and between spine points). Reflecting the immediate pressure of the cost of living crisis, about half of this was to be applied early (£1,000 on each pay point, or two per cent at the higher end of the spine) in February 2022. This February uplift was applied without the agreement of the unions, and remains a bone of contention. Some providers were unable to afford this in-year increase, but remain committed to the August implementation of the total agreed rise.

The Acas conciliation process also saw agreements for further joint work on casualisation (“contract types”), on equality pay gaps, a full review of the pay spine, and on workload. UCEA and the five higher education unions released the following statement:

Following a meeting between UCEA and the Joint HE Trade Unions on Tuesday 14 March 2023, facilitated by Acas, agreement has been reached on terms of reference for detailed negotiations covering a review of the UK HE pay spine, workload, contract types and equality pay gaps. The Joint HE Trade Unions and UCEA will now consult their respective constituencies on these terms of reference as a basis for commencing those negotiations over pay-related matters.

For clarity, on pay, both parties agreed on 17 February 2023 that some progress at the lower end of the pay spine has been made in Acas discussions as part of the New JNCHES Dispute Resolution Procedure, although an impasse, rather than an agreement, has been reached. It was agreed that with regard to pay the Dispute Resolution Procedure had been exhausted.

So why is there still industrial action if there was an agreed joint statement?

Trade unions are democratic bodies and each of the five unions involved needed to consult their members on the proposals.

Unite will be balloting members on the outcomes of the Acas process. It is urging members to vote “yes” to reject the offer. It is also seeking the views of members on the prospect of holding a formal disaggregated ballot for industrial action starting in September 2023 – and is urging members to vote “yes” on this issue.

Unison members rejected an earlier version of the pay offer, and were balloted for industrial action across the sector on a phased basis. There has already been strike action at seven providers, with members at a further 32 higher education employers currently taking part in a ballot which ends on 31 July.

GMB is still in dispute with UCEA over pay related issues, but is not currently balloting members or taking industrial action

EIS-ULA held an aggregated consultative ballot between 2 June and 30 June regarding the 2023-24 pay dispute – it called on members to reject the pay offer, and to vote “yes” on strike action and action short of a strike. The results have not yet been released.

UCU carried out a number of consultative exercises, but the one that counts was the formal consultation of members. Some 56 per cent of those who voted rejected the outcomes of the Acas process. Alongside this, the union held an aggregated ballot of members for strike action and action short of a strike on pay – more than 80 per cent of those who voted were in favour of both. The marking and assessment boycott started on 20 April involving 145 providers – and the current plan is that this will continue at least until the mandate expires in September, though it is likely that a new mandate will be sought before then.

What all unions are asking for is a return to negotiations – with the hope of further movement on 2023-24 pay, and progress on the four pay-related negotiations that were agreed at Acas. On this UCEA has indicated that it is happy to resume work on casualisation, equality, workload, and the pay spine review if the unions agree to suspend industrial action. However, it regards the 2023-24 pay round as closed and will not re-enter negotiations on this – noting that “given the current financial situation there is no possibility of this happening.”

What is a marking and assessment boycott?

Exactly what it sounds like – staff involved simply refuse to do work relating to marking or otherwise assessing student work. This obviously means essays, dissertations, and practical and artistic work don’t get marked, but also relates to stuff like exam boards, processing marks, and making progression or final award decisions. UCU has been clear that this action only applies to “summative” assessment – academics who use formative assessment (for example, seminar quizzes) as a teaching tool that doesn’t contribute to module or course grades have continued to do so.

Because not everyone involved in this action short of a strike is an academic we need also to bear in mind the administrative processes that underpin the conversion of marked work into results and decisions. Collating marks, applying algorithms, preparing papers for exam boards, attending and clerking said boards, and the various data manipulation and data entry tasks that follow are all in scope for this action.

It’s also worth bearing in mind the work of external examiners – not directly employed by the provider in question (they receive an honorarium, reasonable expenses, or both) but still able to choose to withdraw their participation in the process.

How have universities responded?

Universities have generally seen this boycott as “partial performance” of contractual duties – so many have used their legal right to reduce or not to pay salaries. If an employer states that it does not accept partial performance of a contract, it can withhold pay entirely. This has happened in a few cases, though in the most part the deduction has been partial – where employers allow employees to continue to do other work then pay should reflect this.

There has been a lot of debate about how much pay should be deducted in these cases – there are no hard and fast rules on this, though case law suggests that a proportion of pay that fairly recognises the extent of partial performance is fair. This is based on the damage caused to the employer rather than the proportion of the contract (or workload model) that is based on carrying out the task in question.

Even if someone has assessment-related responsibilities as one of many contractual duties, the damage caused to their employer (in terms of the cost of having the work performed by someone else, or of offering compensation to students, or in rescheduling events) is what matters here. Industrial action, of course, is generally designed to cause significant damage to an employer.

More than 20 UCU branches are now taking strike action as a result of these policies.

What about students?

The undergraduates reaching the end of their full-time three year courses this year started their studies in the autumn of 2020. They have suffered through Covid restrictions in 2020 and 2021, plus industrial action in 2020, 2022, and 2023. Although all students are potentially affected by the boycott, it is this group – and the trainee teachers who have been temporarily allowed to proceed into jobs without confirmation that they have attained qualified teacher status – that has attracted attention in the national and local press.

It is unclear how many students have been affected, or at which providers. As with any industrial action, unions are keen to claim that the boycott is causing serious problems, while employers are keen to emphasise that any problems are isolated incidents.

There is clearly a difference between a first year waiting for a mark for a single piece of work on one module, and the final year students unable to get the degree classification they need for the next stage on their career plan. The Guardian and Sky News have reported – based on information from the National Union of Students – that tens of thousands of students are being left without final results, including about a third of the UK’s final year undergraduates.

Conversely, UCEA has surveyed just under half (49 per cent) of universities involved in the boycott. Some 71 per cent claimed that less than two per cent of their students would be unable to graduate, four per cent claimed it would be between two per cent and nine per cent, and a further 20 per cent claimed to be unsure. Commenting on coverage of the boycott at the University of Cambridge, UCU suggests that “this is just the tip of the iceberg of the national degree scandal” and, in response to the UCEA survey, told us “Over 5,000 students have already been told their degrees have been impacted, and we are still around a month away from most graduations.”

As another way of understanding the scope of the MAB I’ve been tracking local and national press coverage relating to individual institutions – and joint statements made by universities and local union branches – and have visualised this here. My thinking here is that effective action is likely to attract press coverage, and that the likely result of an effective campaign is a joint statement. I will try to keep this up to date and accurate, and if I’ve missed something important please do let me know.

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What will happen next?

Universities have put in place mitigations, most commonly where results are incomplete allowing students to graduate with their final grade to be confirmed, or with a provisional final grade based on previous performance. Jim Dickinson has been keeping an eye on this, and on the case for student compensation where results (and feedback on work) has not been provided in a timely way. Certainly, graduations appear to be going ahead in many parts of the sector – possibly as a result of these mitigations, and possibly as a result of a low number of students being affected.

The national debate, such that it is, appears to be iterating towards a question of affordability. Raj Jethwa at UCEA suggested on Wonkhe that an independent review of sector finances would help avoid similarly damaging disputes in future – though (also on Wonkhe) Jo Grady at UCU continues to argue that “that every single institution involved in the dispute is able to pay staff more than the five per cent our members have rejected.”

We’ve been round the houses many times on sector finances, and the applicability of capital funds and “surpluses” to the pay of staff, and the rising costs of universities doing pretty much anything.

What is beginning to emerge at a local level – as exemplified by the joint statement between the UCU branch executive and vice chancellor at the University of York Charlie Jeffery – is a position where it is agreed that staff deserve to be paid more, and the universities need more money to be able to do so. Here we also find a focus on longer term thinking about pay, with both sides of the dispute keen to avoid annual industrial action.

Though the data we have in the public domain on 2021-22 universities finances is not an easy read I suspect the data on 2022-23 and 2023-24 will be even scarier – this is a key driver in the parallel debate on the future of higher education funding. The ongoing fee freeze (and home student related income freeze) is a big factor here, representing a large real-terms cut in the income of many universities.

It’s also important to consider recent trends in student recruitment, which have seen some providers grow beyond their capacity and others shrink to the point of non-viability. UCU has hinted at support for student number controls to constrain this trend. However, the chances of a significant increase in university income from home fees appears slim – and the recent rise in international postgraduate fee income, given recent changes to dependant eligibility and continued hawkishness regarding China, seems likely to falter as well.

It is, in other words, it’s a particularly bleak outlook for the sector and those who work in it, and there are unlikely to be any easy or quick answers.