The University recognises that UCU have a valid mandate for industrial action, and therefore participation by UCU members in the actions specified is lawful. Notwithstanding this, whilst ASOS may be lawful, it remains the case that such actions might amount to partial performance of the contract of employment, and therefore a breach of contract. This is because the contractual obligations of staff include not only expressed terms but also a range of implied duties, such as a duty to comply with reasonable managerial instructions, duties of co-operation and faithful service, a duty not to disrupt the University’s business and a duty to serve the University with good faith and fidelity.
The University expects staff members to perform their contractual duties in full, and does not accept partial performance. Where action taken under ASOS results in partial performance of the contract, the University is entitled to withhold up to 100% of pay, and to continue to withhold pay until the member of staff resumes their contractual duties in full. It is clear that participation in an assessment and marking boycott would amount to partial performance and give rise to a breach of contract, particularly where reasonable management instructions have been given to make clear this activity must be given priority.
We recognise, an assessment and marking boycott, where this is undertaken, has the potential to cause significant undue stress and disruption to our students. Consequently, we have concluded that it is, on this occasion, proportionate and necessary to adopt a position of withholding 100% of pay from colleagues who take part in the assessment and marking boycott where this results in some or all marks as referred to above not being submitted by 5 July 2021. Where this is the case, pay will be withheld, taking effect from 18 June 2021, and the University will continue to withhold pay until colleagues resume their assessment and marking duties in full, resulting in a full set of marks being returned. Colleagues should note that, should they participate in the assessment and marking boycott, any other work that they do choose to do will be regarded as voluntary and will not be eligible for payment.
We appreciate that the decision to take ASOS will not be taken lightly. Nonetheless, we hope we can continue to support our students and avoid undue disruption.