Tough corners and tight spots – how do you regulate universities during strikes?
On Thursday OfS snuck this “disruption caused by industrial action” briefing note out. It’s a reworded version of this briefing note on the same subject that it published back in 2019.
Basically, it sets out its approach to monitoring and judging providers’ actions over any industrial action to ensure that universities remain compliant with the requirements of OfS’ regulatory framework. The most important bit is the checklist of things it says universities need to do mitigate the impact of any industrial action that ensues:
Whether the provider can demonstrate that effective arrangements were in place to oversee and manage the impact of industrial action on students.
The efforts the provider has made to engage with students and communicate with them about any disruption – including for any particular groups of students who may be more affected (such as international students whose visa conditions could be affected, or students with caring responsibilities).
The mitigation the provider has put in place to minimise the impact on students.
What the provider originally promised and what students could reasonably expect.
Where delivery did not meet promised standards or reasonable expectations, what alternative action the provider has taken to remedy this.
Whether the provider can demonstrate that it has followed its own processes and procedures for maintaining standards.
Whether the provider made relevant provision in its student protection plan and, if so, whether this provision has been implemented.
Whether the mitigations providers put in place met the needs of all students.
Overall the note is interesting for a few reasons.
First – what’s odd, if you think about it, is the complete absence of any reflection on how the sector it regulates did in late 2019/early 2020 on this when there was last a round of industrial action.
I know that a pandemic got in the way, but surely it got some notifications it followed up on last time? Surely it’s looked at the complaints OIA got and followed some up? Did reportable events roll in? Did it take any action on providers that didn’t meet the expectations? We just don’t know.
But more broadly, it puts universities in a tougher spot than ever over mitigation.
In the olden days, when students were students and OfS was HEFCE and Jo Grady was Sally Hunt and so on, UCU would rarely take members out for more than a few days – and even then they tended to be concentrated at the end of the year.
Generally, the playbook was just don’t assess on what you’ve not taught – and that way, students’ academic interests would be unaffected.
But these days the focus is both on academic outcomes and academic experiences. As independent adjudicator Felicity Mitchell put it last time around, while providers went to considerable lengths to make sure that their students were not disadvantaged academically, there was much more variability in how providers approached the lost teaching and lost learning opportunities:
Some have delivered missed teaching by other methods, such as videoed lectures, published lecture notes and other on-line resources, additional tutorial sessions, and allowing students to attend different seminar groups or audit the missed sessions at a later date.
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.
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.
This makes things very interesting for UCU. Some will argue that making up for lost teaching is fine – it’s the initial disruption that matters. Others will argue that helping out with or allowing the teaching to be “made up for” is strike breaking. What’s the point of withdrawing your labour if someone can show a video from last year or make you deliver it later in the term?
Two other quick thoughts. One is that OfS notes this time that these days, OIA has a group complaints regime that allows students to effectively convert a petition into something that has to be formally investigated and adjudicated on by someone in Reading. There remain interesting questions on how general or specific the issues in a shared group complaint can be that still need shaking out.
Finally, OfS makes some oblique references to so-called “Force Majeure” clauses, where providers seek to limit liability on the basis that strikes were some kind of impossible-to-predict act of god outside of their control. Not only does consumer protection law tend to mitigate against such clauses being lawful in general, but hard to predict? Really?
One response to “Tough corners and tight spots – how do you regulate universities during strikes?”
The economic parameters of such strike action seem now to be fairly clear – the S gets a refund of c£150 pw of completely lost lectures if he/she takes a complaint to the OIA and hence a few Us last time preempted that need by just simply awarding rebates of c£125 as the straightforward way that a responsible business compensates customers for failed delivery of service.
The cost to the U of such compensation can be offset by reducing pay by a 365th for each day of declared strike absence from T delivery (the AUT/UCU lost its court case challenging that where it was claimed that the academic was doing other useful stuff while not giving the scheduled lectures).
And, of course, the nuclear weapon remains that an employer can refuse partial performance along lines of ‘I will be on strike on alternate Tuesday mornings’ by demanding 100% fulfilment of duties or else no pay at all for the whole of each disrupted week of Term (deducted at 7 x 365ths) – but then, presumably, contract/grant Research gets messed up.
Unclear in terms of breach of contract whether high-fees o/s Ss get refunds of far more than £125-150 pw. And also unclear what compensation might be due if the substitute T delivery (‘Here is a video to watch’) is not up to snuff or if its later belated delivery is disruptive for the customer (‘The missed lectures/lab-practicals will be given on Friday evenings…’).
Strike action against assessment grading and exam setting/marking is perhaps potentially a more disruptive mechanism – but not if Us just extrapolate earlier marks so as to fill in for the missing bits and then award the usual 2.1 en masse!
All in the 2021 edition of The Law of Higher Education.