UCU Strike Action - Advice for Students

In January 2018 the University and College Union (UCU), the trade union for lecturers and professional services staff, called for 14 days of strike action. The strike dates were:

  • Week One - Thursday 22nd and Friday 23rd of February (2 days)
  • Week Two - Monday 26th to Wednesday 28th of February (3 days)
  • Week Three - Monday 5th to Thursday 8th of March (4 days)
  • Week Four - Monday 12th to Friday 16th of March (5 days)

Why did this happen?

The strike happened because of a failure to reach an agreement between University and College Union (UCU) and the employers’ representative University’s UK (UUK) over changes to the Universities Superannuation Scheme (USS) pension scheme.

Changes to the USS pension scheme were proposed because the most recent valuation of USS revealed an increase in cost for the current pension scheme and a funding deficit, now estimated at just over £7.5bn. The dispute was around whether Universities should contribute additional funding or staff members should accept lower pensions.

The University's representative - UUK - proposed moving from a defined benefit pension scheme (gives defined income) to a defined contribution model (income varies during retirement depending on the stock market).

The UCU claimed the proposals would mean a loss of around £10,000 a year for staff during retirement. Whereas UUK (the representative body of the University) believed a defined contribution scheme was more sustainable as it finds a solution which is affordable both for employers and for staff.

The dispute was a national issue and Cardiff was one institution out of 61 who had initially voted for industrial action. 89% of Cardiff UCU members voted in favour of strike action, 636 votes overall were cast.

How did the strike end?

On 9th March 2018 both UCU and Universities UK returned to negotiations. UCU had given notice of further industrial action beginning in mid-April and continuing into the exam period, but on 13th April 2018 UCU members voted by two to one to accept proposals aimed at resolving the pensions dispute.

UCU members voted in favour of accepting an ACAS proposal for a Joint Expert Panel to be established with the view of commissioning a report into the future joint approach of UUK and UCU in the valuation of the USS fund. This will require the status quo in the current pension scheme until at least April 2019.

How significant was the disruption?

For large numbers of students teaching and learning was cancelled. Not all members of staff took part in industrial action.

What have the University said about strike action?

Cardiff University recognised that 'the disruption caused by the industrial action has been a source of concern and anxiety' and provided continuous updates throughout the strike action. In addition to correspondence from academic schools, open letters, updates and emails were sent by the Pro Vice-Chancellor for Student Experience and Academic Standards, the Deputy Vice-Chancellor and the Vice-Chancellor. The most comprehensive page of information collated by the University is available from the student intranet here.

From 16th April 2018 the University confirmed its understanding that all further strike action would be called off with immediate effect.

The University confirmed that strike action did not disrupt the publishing of exam timetables and pointed to the range of extra exam skills classes beginning in mid-April to help students prepare for their exams.

 

 

I was affected by the strikes. What can I do now?

If you are concerned that you were negatively impacted by the strikes there are a number of actions you may want to consider.

1. If you are concerned we would first recommend approaching your academic school to explain how the disruption has affected you and asking for proactive measures to address the problem, such as a replacement of teaching or a variation of an assessment.

2. If you are unhappy with the response of the academic school, you should report the concern to the University's 'Disruption Student Helpline' (029 2251 1333) which operates Monday - Friday 10:00 - 15:00. You can also send an email to disruptionadvice@cardiff.ac.uk.

3. Where the University has not or cannot replace lost teaching or learning, prior to your assessment(s) the Students' Union would advise that you safeguard your acaedmic interests by filing for extenuating circumstances. The University have said that extenuating circumstances remedies will be applied automatically, but our advice remains to apply as an individual.

The University have confirmed that Examining Boards will be made aware of disruption that the University is aware of, but there may be elements of disruption which are not recorded and so we would suggest you proactively inform the University of any particular disruption.

Where disruption is known the University have confirmed that it will consider disruption caused by the strikes to be a 'defect or irregularitu' in the delivery and/or assessment of the module and will therefore make adjustments. The University has not however confirmed what adjustments could be made, the effectiveness of which could vary from student to student.

Extenuating circumstances remedies might include extentions to coursework, uncapped resits for failed examinations or the discounting of modules from your over-all degree classification. If you have a preference as to which of these remedies you would prefer, we would recommend proactively filing for extenuating circumstances and asking for it.

4. After an assessment or examination, if you feel your grades have been negatively impacted by strike action, we would advise that you appeal the grade under the academic appeal procedure, using ground two (defect or irregularity).

 

I am unhappy. How do I complain?

If you are dissatisfied with the service you have received from the University, the Students' Union would always suggest you communicate that dissatisfaction through a complaint.

Many students do not like complaining, but the University very clearly says you will suffer 'no detriment as a consequence' as a result of making a complaint.

The Students' Union has detailed guidance avaiilable on its website to help students make a complaint to the University. More guidance is available from the University website directly.

For ease of access we've included links on this page to the Complaints Procedure, the University Complaints Form, and the University's Quick Guide for Complaints.

You will notice that the University complaint procedure has two stages - early resolution and formal. If you have tried talking with your academic school about the porblem but have not received an adequate response, we would suggest that this qualifies as you already engaging with 'early resolution' and leaves you free to pursue a formal complaint.

Formal complaints are dealt with by the Student Complaints Department of the University Registry. Their contact details are below.

Email: Studentcomplaints@Cardiff.ac.uk

Tel: 02920 688745

How does the complaint process work?

The University Complaint procedure usually requires you to submit your complaint within 7 calendar days of the problem arising and so in this case that could be considered within 7 days of the strike action ending.

You should read the Student Complaint Procedure before making your complaint.

There are four stages of the complaint procedure:

  1. Early Resolution (could could write to your Head of School)
  2. Formal Complaint
  3. Review Stage
  4. Complaint to the OIA (Office of Independent Adjudicator)

The University usually requires students to start the procedure with an 'Early Resolution' or 'Informal Complaint'. Usually early resolution complaints are dealt with by staff called 'complaint administrators'. After that if dissatisfied with the response, we would encourage you to move to the next stage of the procedure and make a formal complaint us to the Central University. If you are still dissatisfied you may request a review of the decision and finally forward the complaint to the OIA (Office of Independent Adjudicator).

We would encourage you to acquire and provide evidence so as to support your complaint.

There is more information below to help you write your complaint.

How should I draft my complaint?

The University has an obligation to deliver programmes and research opportunity as described in materials published by the University.

Section 1.2 of the University Complaint Procedure explains that 'students can use this procedure if their complaint relates to any of the following:

  1. failure by the University to meet its obligations;
  2. concerns about the delivery of a programme, teaching or administration;
  3. issues relating to the quality of facilities, learning resources or services provided by the University.'

See the University's Student Charter and terms and conditions below:

https://www.cardiff.ac.uk/public-information/students-applicants/admissions-policies/terms-and-conditions-of-offer

Therefore we would suggest drafting your complaint as follows:

    1. Pointing out the obligations of the University to deliver the programme, teaching or administration.
    2. Establishing where this has not happened, with evidence as appropriate.
    3. Highlighting the impact that this has had on you as a student.
    4. Explaining what you would like the University to do about it.

 

References to compensation in the media

Lots of commentators are arguing that students should be entitled to a tuition fee refund for the missed teaching. See the articles below.

https://www.theguardian.com/higher-education-network/2018/feb/07/students-demand-compensation-from-universities-over-lecturer-strikes

http://www.telegraph.co.uk/news/2018/02/10/students-demand-compensation-lecturer-strikes/

https://www.thetimes.co.uk/edition/news/students-want-refunds-when-lecturers-strike-mf336qhkn

https://www.independent.co.uk/news/education/education-news/university-strikes-compensation-lecturers-students-sam-gyimah-direct-minister-latest-a8232746.html

http://www.bbc.co.uk/news/education-43229672

https://www.walesonline.co.uk/news/education/students-demand-compensation-uni-lecturers-14314103

In addition, many thousands of students have signed petitions demanding a refund for lost teaching as a result of the industrial action.

How have the University responded?

The University have taken the position that no refunds for lost teaching will be issued to students unless students can demonstrate a failure to 'achieve the learning outcomes attached to each module'.

A spokesperson for the University has said: "The University’s priority and commitment is to ensure that all students are provided with appropriate opportunities to achieve the learning outcomes attached to each module and programme of study. Under these circumstances, no basis for a refund will arise."

"The University is doing everything possible to ensure that there is minimal impact on teaching and learning."

"The Vice-Chancellor has exercised the authority he has under Senate Regulations that allow him to permit changes to teaching and assessment arrangements where exceptional circumstances disrupt the activities of the University."

"Schools are being supported to identify where they may need to vary teaching and assessment activities in order to ensure that students have an opportunity to achieve the learning outcomes of their modules and programmes. This may include rescheduling of teaching sessions, alternative delivery of teaching activity without rescheduling, and alternative means of assessment and in providing assessment feedback."

 

Am I entitled to compensation?

The answer to this question remains legally unclear, but there are a number of ways you can take action if you believe you are entitled to compensation.

1. You can sue the University in the court system. There are a number of law firms taking cases against Universities on behalf of students and a number of 'group actions' to which students can subscribe, for example here.

2. You can complain to the University, exhaust in the internal complaints mechanisms and then request a review of a rejection decision by the Office of Independent Adjudicator, who will decide whether University decisions comply with the wider law, such as new Competition and Market Authority rules. The OIA have been clear that they expect students to first use and exhaust the internal complaints mechanism before approaching them - see the OIA briefing note here. Students do not have to pay to make a complaint to the OIA. Their processess are informal and designed to be an alternative to the adversarial legal processes and so students do not need to use lawyers.

Ultimately students have consumer rights. Universities and other higher education providers that don't meet their obligations to students may be in reach of consumer protection law. This is a fairly complex area of law, but we've done our best to provide guidance below.

The OIA has written an interesting briefing note on how it would consider a compensation claim here.

Are the University in breach of Consumer Protection Law?

This is likely to be something that students can argue in order to make a claim a tuition fees refund and/or compensation. The University are likely to argue that they are not in breach of consumer protection law and an independent point of authority will likely have to make a ruling.

The National Union of Students (NUS) have instructed Wrigleys Solicitors LLP to produce legal guidance in relation to students' rights in light of the industrual action.

There are also two guidance documents provided by the CMA (Competition Markets Authority) that may be helpful for students arguing for a tuition fees refund and/or compensation:

60 second quick guide

Higher Education: guide to consumer rights for students

Most university students have consumer rights that entitle them to receive the services promised by the University and paid for through tuition fee payments.

The Competition Market Authority (CMA) issued a statement in July 2016 saying that "The CMA expects all higher education providers to comply with consumer protection law...".

If a University wants to argue that some students are not acting as consumers, it is up to the University to prove that.

The main issue of debate resolves around the legal concept of 'Force Majeure'. All Universities have in their Terms and Conditions a 'Force Majeure' or Frustration clause - a contractual provision that refers to an event or series of events outside the control of the contracting parties which prevents one of them from performing its contractual obligations to the other.

It usually contains a disclaimer which operates to protect the defaulting party from liability for non performance or late performance when events in question arise or continue. Typical examples of force majeure events outside of strikes might include natural disasters such as fire, flood, earthquake, bad weather conditions or other substantial disruptions outside of the parties' control such as explosions, civil commotion, war or terrorist attack.

For the University, relying on force majeure provisions are not a guaranteed defence to student claims. The burden of proof is on the University to shower that the strikes fall within the 'force majeure' clause.

As force majeure in a student contract will operate as an exclusion of liability in a consumer contract it is subject to consumer protection legislation. This means that the university will need to demonstrate that the force majeure provision is fair and reasonable in all the circumstances - and as part of this assessment the court is likely to require the university to demonstrate that it has taken all reasonable steps to avoid the operation of the force majeure event and to mitigate its effects on the other party.

As a result, a question that is likely to arise at the latter stages of a complaint will be 'did the University do all it could to avoid the strike?'

A classic challenge to Force Majeure for strike action is that disruption is not something which is outside the control of the university as the university could have negotiated a compromise or agreed to the demands of the strikers to avoid the risk of widespread industrial action. If the university can demonstrate that it did all that it reasonably could to avoid disruption, the courts and/or OIA (Office of Independent Adjudicator) are more likely to find that the provision is enforceable.

Complaints made by students should therefore evidence that the University did not do all it could to avoid the strike.

The UCU strike is a national dispute. Most Universities have relied on UCEA and UUK to negotiate for them. It is unclear whether that alone was enough to reasonably avoid disruption for Cardiff University students - particularly given suggestions of posturing, tactics and arguably a hard line approach of UUK this time around.

Complaints made by students should also evidence where the University did not do all it could to mitigate strike effects on students.

Any steps taken to minimise disruption would need to be disclosed to the courts if a challenge is made on the basis of fairness or reasonableness. Complaints would need to argue that the University has not done all it could to mitigate the effects.

Some suggested measures from third parties include recruiting extra markers to mark assessments, appointing external examiners, rearranging lectures and assessments where possible and preventing unnecessary delays at all times. Should marking be delayed options available could include change in the focus of the degree ceremony from a formal degree confirming ceremony to a celebration, should results not have been returned at that point, or delaying the ceremony, or awarding marks on the basis of provisional assessments.

The realities of the academic year and the tendency for those using their right to strike to only announce on the day mean that the University are likely to find getting cover for or rearranging teaching difficult. But if the University are not able to demonstrate that they have taken all reasonable steps to mitigate impact, a student's claim for a tuition fee refund and/or compensation will be successful.

 

What if I have concerns about the quality or standing of my degree after 'adjustments'.

The Quality Assurance Agency (QAA) is an independent, not for profit organisation responsible for checking that students working towards a UK qualification get the higher education they are entitled to expect.

The QAA has held a longstanding position with HE providers that institutions have a contractual obligation to students which they must meet using their normal methods of assessment. The QAA has said that:

'If in these circumstances, [where] an institution chooses to continue to assess students and award qualifications, QAA shall expect it to do so taking every measure available to it to ensure that its academic standards are not put at risk and the value of its awards is maintained.'

'It will be for the individual institutions concerned to decide if this is possible, and how it might be done. For QAA's part, we would expect to see the relevant parts of the UK Quality Code for Higher Education adhered to, so far as is reasonably practicable.'

If you believe the quality or standing of your assessment has been compromised you can raise a concern with the QAA on their concerns page.

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Withholding of Tuition Fee Payments - UCU Strike

When you (the student) agree to attend University, you enter into a contractual relationship with the University (the provider).

That contractual relationship requires you to pay tuition fees in exchange for the provision of services from the University. If you do not pay the tuition fees, or the provider does not adequately provide the services it has agreed to do so, the said party will be in breach of contract.

Some students have argued that providers have failed to render services required by the tuition fees contract as a consequence of the UCU Strike Action, held in February and March 2018.

The Independent Student Advice Service, within Cardiff University Students’ Union has provided extensive advice and guidance to students who were affected by strike action.

https://www.cardiffstudents.com/advice/academic/ucustrike/

Our advice to-date has focused primarily on students’ right to complain, lodge an appeal and file for extenuating circumstances.

If your complaint has been completed and you have exhausted the internal processes of the University, you will receive a 'COP Letter' from the University and will be oligible to refer your case to the Office of Independent Adjudicator. Please find more information on the OIA section of our website.

As well as complaining, some students opted to partially/fully withhold tuition fee payments in response to the argued breach of contract by the provider.

Whether those students had the legal right to do this, whilst still expecting the contract to be fulfilled by the provider is a point of legal contention.

The Legal Question

There is very little case law in this area of Consumer Protection Law. The question will ultimately have to be decided, conclusively, by either a court or Parliament.

The National Union of Students (NUS) and Wrigleys Solicitors have produced legal guidance to clarify the legal issues.

https://www.nusconnect.org.uk/resources/students-rights-as-consumers-in-relation-to-the-ucu-strike

Further information about Consumer Protection Law in the context of Education has been provided by the Competition and Markets Authority below.

https://www.gov.uk/government/publications/higher-education-providers-short-guide-to-consumer-protection-law

https://www.gov.uk/government/publications/higher-education-consumer-law-advice-for-providers

What has the University said?

The University has received legal advice, on the basis of legal opinion, that Consumer Protection Law requires it to ensure that:

‘…students are provided with appropriate opportunities to achieve the learning outcomes attached to each module and programme of study.’

Following that advice, the University has argued that there is no legal basis for a refund of tuition fees and following logically, that tuition fees are payable in full.

While it is possible that the provider could change their mind, there has been no indication of this at the time of writing.

The decision of the University is open to challenge, but in practice this would take some time.

In the meantime the University may decide to take action, under its internal rules and regulations, against students who have failed to make the full tuition fee payments.

The Decision for Students

The decision for students as to whether to continue to withhold tuition fee payments is essentially one of risk.

Students are both able to sue the University for breach of contract and request their complaint be looked at by the Office of Independent Adjudicator for Higher Education. Whether either of these options will result in 'success' from the perspective of the complaint is legally uncertain at this point in time.

Answers to the legal questions are likely to be some time away, and in the course of waiting, the University is able to apply its own internal rules and regulations.

If students, by non-payment of tuition, are held to be in breach of contract and the rules of the University, the provider may decide to take action against students, up to and including exclusion from study.