Universities continue to face industrial action. One of UCU’s ‘four fights’ is anti-casualisation with UCU seeking an end to ‘precarious’ contracts.
Legal ways to engage workers
A ‘Precarious contract’ is not a legal term. Historically, universities have used the full range of ways to legally engage workers because universities require an extensive range of expertise and resource demand varies depending on student numbers, research funding and government regulation.
One legal way to achieve flexibility is via fixed-term employment contracts. The JNCHES Agreement from 2002 sets out some principles on the use of fixed term contracts. Such contracts have allowed universities to link the duration of employment to external research funding or a particular project. When an academic is employed to undertake an externally funded piece of research and the research ends, the end of that contract falls within the legal definition of redundancy unless an alternative can be found. Employees on fixed term contracts are protected from less favourable treatment than permanent comparable employees. If they are on successive fixed term contracts for more than four years it will become permanent unless there is justification for the fixed term contract continuing. Some universities have a process of justification for the use of a fixed term contract and, when used, automatically convert contracts at the four year point. Those who do not do this are coming under scrutiny.
Another form of engagement is a variable hours contract. ‘Visiting’, “Hourly Paid” or ‘Associate’ lecturers usually fall into this category and they may be workers, employees or self-employed. Some have substantive employment contracts at one institution and carry out lectures at another for a fixed fee, some are PhD students, others work solely for one university on variable hours contracts. We have seen “living in a tent” and similar accounts reported in the press. Institutions are taking steps to improve the situation by employing more and establishing policies to enable individuals to move to more secure contracts when possible.
Government plans and case law
The scrutiny of ‘zero hours contracts’ started around 2015/16 including in national newspapers. The government commissioned the Taylor Review in 2017 and published its response in 2018: the Good work plan. This has resulted in workers having a day one right to written statement of particulars since 6 April 2020 and the reference period for the calculation of holiday pay being 52 rather than 12 weeks.
The Employment Bill that was announced in the December 2019 Queen’s Speech also included some of the plan’s other recommendations such as the right to request a more predictable and stable contract after 26 weeks’ service for those engaged in variable /unpredictable hours contracts (see 2019 consultation). It is yet to be published and reports say it will not be in the forthcoming Queen’s Speech.
The current legislative framework does not facilitate agile working or flexible resourcing and is not changing as fast as the world of work. In the meantime, case law is increasing protection for workers.
In the recent case of Smith v Pimlico Plumbers, Mr Smith had taken unpaid holiday due to Pimlico Plumbers considering him to be self-employed. The Court of Appeal held that he was a worker and was entitled to payment on termination for all unpaid statutory holiday back to start of the engagement (20 days per year). Similarly, the Supreme Court held in its judgment in 2021 that an Uber driver was not a self-employed contractor but a worker with the associated rights.
We are also waiting for the judgment in the Harpur Trust v Brazel case from the Supreme Court. Ms Brazel worked as a visiting music teacher on a zero-hours term time only employment contract. The Court of Appeal found that because she was engaged for the whole year her paid leave entitlement should not be pro-rated i.e. she should receive the full paid 28 days like full-year employees. The Trust has appealed this judgment.
One size does not fit all
I do not agree with Michele Donelan’s recent piece that suggests casualisation is the reason we have more male than female professors and even sexual misconduct in the academic sector. Nevertheless, universities are rightly responding to the demand to reduce reliance on ‘precarious’ contracts.
We are working with some universities to do this by using employment contracts more and by drafting appropriate policies. This often results in less individuals working for a university because engagements are on employment contracts for more hours, for longer, and with full employment benefits. This may suit some workers but not all. As the pandemic has taught us: one size does not fit all.
A university’s employer offering needs to be more individualised than it ever was (dare I mention ESG, diversity and inclusion, wellbeing, the great resignation….). Despite pressure from unions to act quickly, universities would be sensible to consider how they can continue to use the full range of legal ways to engage resource whilst moving in the direction of travel outlined above. This will enable a transition to a more sustainable resourcing model that is sufficiently agile to meet the changing demand from the business, individual workers and the law.