Does OfS inaction prolong strikes in the sector?

The danger is that rolling its sleeves up risks looking like it’s picking sides. But has it been rather too hands off? And would some more proactive intervention have brought the dispute to a resolution by now?

The minutes from its board meeting on 8th December say that OfS had updated and reissued its guidance for providers, and it was also noted that the Office of the Independent Adjudicator for Higher Education (OIAHE) had also issued guidance on refunding students who may have missed teaching as a result of industrial action.

The other day, the Office for National Statistics (ONS) estimated that 133,500 working days were lost to industrial action in UK higher education in November 2022 alone, with 53,800 workers involved.

So that’s either a huge wedge of compensation that has been paid out, or all the lost teaching has been made up for. Neither seem plausible.

There’s obviously a lot of controversy surrounding the “made up for” thing.

Most (although not all) trade unionists would argue that there’s no point in withdrawing labour if they can then be told to reschedule the teaching not delivered – and so partly via associated action short of a strike, UCU tends to advise members not to engage in making up for “lost learning opportunities”.

Some staff regard the hassle of not delivering and then rescheduling enough of an impact. And some employers believe they have the right to prioritise the activities of staff such that teaching is rescheduled once staff return to work. But in the main, the teaching appears to be lost.

Some on both sides still tend to focus on not assessing that which hasn’t been taught, but it’s long been the case that the duty on universities via consumer protection law, and reinforced in guidance from both OfS and the OIA, is that as well as mitigating the impact on learning outcomes, lost learning opportunities matter too.

Universities’ official position is that pretty much all of that is made up for – via rescheduled teaching, other cover, or different types of activity and support. Tactics vary from “well we told the departments” (but they ignored us) to “we got students to tell us about what they lost” (which is routinely interpreted as “snitching”).

It means that repeatedly, two different versions of reality are on offer. The official universities’ position is that students haven’t been impacted, and the official trade union position is that they absolutely have. And nobody seems overly keen on getting to the truth.

The OfS board position is interesting because it reflects the respective roles of the regulator and ombuds – OfS is supposed to be proactive and system wide, and the ombuds responds to individual student complaints.

And lo and behold, whereas the ombuds has a string of upheld complaints that relate to lost learning opportunities, OfS has pretty much nothing to show for several years of being the regulator while there’s a strike on.

The reality is that it is not easy for students to identify instances where they have not received the service they were promised and to seek redress. This means that students’ consumer protection rights are not enforced when what they have been promised, in terms of quality, contact time, support, and so on, is not delivered. We should, however, also consider whether a model that relies primarily on individual students challenging a provider for a breach of contract places a burden on students in an undesirable way.

The previous paragraph? OfS CEO Susan Lapworth herself, in a paper to the board on developing OfS’s approach to consumer protection from 2019 that has seemingly gone no further since.

To get a detailed sense of the interactions between the regulator and an individual university over industrial action, it’s worth a look at this “assurance review” prepared for university council at Queen Mary, University of London late last year.

Para 11 reminds council of OfS’ approach:

We expect providers to take all reasonable steps to avoid or limit disruption to students. We also expect providers to make up for any teaching time or learning that students lose. For example, providers might make up for lost teaching time later in the academic year or offer full or partial fee refunds. Any changes made to examinations or other assessments should not disadvantage students, while also maintaining standards. Providers should communicate regularly and clearly with students to ensure they understand the impact that disruption will have on their studies and the steps being taken to mitigate the impact of any disruption.

And then para 12 describes questions posed by the Council on the management of industrial relations and the impact of the dispute, including:

Did the University executive take appropriate steps in relation to compliance with the ongoing conditions of registration with the Office for Students to avoid or limit disruption to students, to make up for any teaching time or learning that students lose or to ensure that any changes to assessment do not disadvantage students, while also maintaining standards.

Later the university’s position is that information on pay deductions shows that between March and May “all teaching” that was missed because of strike action was subsequently made up, and that out of 490 complaints and appeals filed with the university centrally by the end of August in relation to the last summer assessment period, just 27 referred to missed teaching.

The university’s position on what counts as “making up” is then detailed latter in a letter to OfS:

We have asked all staff taking part in industrial strike action to make up lost teaching when they return to work. It is not acceptable for staff simply to post lecture notes online, for example, or to remove lost learning from the assessment. Instead, we expect staff to deliver meaningful teaching activities to make up for what was lost. Staff are given some flexibility in relation to the format and timing of replacement teaching activities, subject to approval from the Head of the School or Institute with overall monitoring by the Faculties and the Vice-Principal (Education). The Head of the School or Institute also plays an important role in ensuring that the arrangements are communicated clearly to students.”

I have no particular reason to not trust what the university is saying here – but if that is the routine position of employers when OfS comes nosing around for answers on handling of the dispute locally, it does fly in the face of what the unions argue is the impact they are having as a result of the withdrawal of labour.

This type of thing has a real impact on individuals. Across the sector I’ve come across a lot of students being told (on a blanket basis) that they can’t claim the strikes as a mitigating circumstance, because the university’s public position is that teaching is made up for.

Those students’ own academics are often openly contradicting that position, including on Twitter – but the student is told to complain about the service, not expect the lost learning to be taken into account when they’re graded.

Those same students are then usually told that they can’t complain until “after” the strike, which also looks set to be after their final piece of assessed work or exam, and indeed long after the majority have energy left to pursue the injustice.

OIA would argue that that sort of thing is “not good practice” (as close as it can get to not allowed), but there’s scant evidence of OfS ever taking up implications from OIA cases. We might also muse on the OfS student panel not staging a substantial discussion on the industrial dispute, unless I’ve missed it.

The point is that if the withdrawal of labour really is resulting in lost learning opportunities (or at least replaced learning opportunities that wouldn’t pass the sniff test for OfS or OIA), and that was being more proactively addressed as provider failure, mass breach of contract or at least regulatory non-compliance, the dispute would be over by now.

It could be, in other words, the very fact that OfS is so keen to not appear to intervene that is diluting the impact of industrial action, artificially prolonging the dispute in the process, and ultimately harming the students that OfS is supposed to secure the interests of.