1. Policy statement

The University of York in the context of our partnership approach to employee relations will seek to work with staff and their representatives to avoid wherever possible and/or minimise the incidents of industrial action and disputes.

However, the University recognises that there may be exceptional occasions when staff choose to participate in industrial action, including but not exclusively strike action.

2. Scope

This Policy is applicable to all staff employed by the University of York.

3. Aims

The Policy provides a clear statement of the actions the University of York will take with regards to our response to managing industrial action.

To achieve these aims the policy specifically covers the following issues:

• Legal principles of industrial action
• Strike action and action short of strike referred to subsequently as partial performance
• Withholding of pay
• Communications with staff including identification of staff taking part in industrial action
• Return to normal work
• Impacts of industrial action on staff who do not participate

4. Key Principles

4.1 Legal principles

When dealing with circumstances which constitute industrial action the following is a summary of the legal principle that the University of York will adopt when considering how it deals with staff who participate in such action.

Industrial action refers to any measure taken by trade unions to reduce productivity in the workplace. It is often referred to as meaning a strike but can take many forms, such as, 'go slow' or 'work to rule'.

4.2 Industrial action is a breach of contract

Employees taking any form of industrial action will be breaching their contract of employment as they will not be doing the work they are paid to undertake. Employees do not have a contractual claim to be paid unless they are ready and willing to perform their contract in full. There is no obligation on employers to pay employees for work that has not been done.

4.3 Strike action and partial performance (action short of a strike)

4.3.1 Strike action

In cases of full strike action, the University of York will withhold/stop a day’s pay for each day the employee does not work.

4.3.2 Partial performance (action short of strike)

Legally an employee is not able to select which parts of their contract they are willing to undertake and if they choose to take part in selective industrial action short of full strike, i.e. partial performance, they are refusing to undertake their full contractual duties.

Any employees involved in partial performance are deliberately refusing to undertake their full, normal contractual duties and are therefore in breach of their contract. The University of York does not accept partial performance and will deal with any such action using the same principle as strike action i.e. staff will not receive contractual pay.

We recognise the high level of commitment of our staff and understand that an employee may choose to continue to perform some of their duties during industrial action. We recognise this is a choice that our staff have made during previous industrial action. In such circumstances we would consider the employee to be acting and working voluntarily and not eligible to receive any contractual payment for such work.

In such circumstances where employees volunteer to continue working or are fulfilling part of their duties we would continue to allow them access to the University premises and we may consider paying them a proportion of their contractual pay in recognition of the duties they are performing.

4.3.3 Distinctions between types of industrial action

The University of York acknowledges that there are distinctions between the type of industrial action that staff may take and the impact of such actions. These impacts can be considered as:

• serious breaches of contract - which have an immediate effect and are high intensity in terms of impact on the organisation
• less serious or low/medium intensity breaches where impact is minimal or less immediate

The following are some possible examples of the types of action that may differentiate such types of activity:

In these circumstances the University will make a reasonable response considering the impact of such action. The exact response to any level of action would be considered when the specific details and likely impact are known.

4.4 Withholding of pay including the calculation of a day’s pay

As previously stated the University considers staff participating in industrial action to be in breach of their contract and therefore not eligible to receive pay. In such circumstances and where there is a serious organisational impact due to the member of staff not fulfilling their duties, they will lose a day’s pay for each day they undertake such action.

If in the circumstance of partial performance, i.e. action short of strike or action causing minimal impact and disruption, and where staff volunteer to continue to undertake some of their duties, it may be considered that for example, 25% of that employee’s pay is withheld for each day such action is taken.

The University of York would reserve its right to consider any escalation of action in such circumstances and to accordingly withhold an increasing amount of pay.

4.5 Calculation of a day’s pay

Any pay withheld would be calculated on the basis of 1/365 th of an employee’s salary. The full notional salary as defined in employee's contract will be used to calculate the amount of pay to be withdrawn.

4.6 Communications with staff

We will communicate with staff before any planned industrial action, to remind them of our policy regarding withholding of pay and to confirm our response to the detail of the particular circumstances of the planned action. This communication will occur when it is known that industrial action of a specific nature is to occur and if possible before any dispute actually starts.

We will require staff to complete documentation to make clear their involvement in any industrial action. The University of York is entitled to know if staff are taking part in industrial action and what the nature of this action will be. We will write to all staff in the categories potentially covered by planned action, requiring them to make us aware of their intentions and when they will resume work.

Such communications will be issued regularly and every effort will be made to give members of staff the opportunity to inform us of their intentions.

Appropriate systems will be set up to deal promptly with any exceptional cases following industrial action where pay has incorrectly been withheld from a member of staff who advises that they are not participating in such action.

If staff choose to undertake some of their duties as mentioned in 4.3.2 (Partial performance) we will inform them how this will be viewed in terms of potential intensity of impact on the University and the level that pay may be withheld in those circumstances of low/medium intensity.

There will be clear instructions to staff who they should contact if they are unsure of any aspects of our policy and the consequences of them taking industrial action.  

4.7 Return to normal work

Staff returning to work following industrial action will be expected to resume their full duties.

4.8 Impacts on staff who do not participate in industrial action

The University will wherever possible cover the essential duties of those staff involved in industrial action, but staff not participating in action will not be unreasonably asked to take on the duties of absent colleagues. Clearly any staff not participating in industrial action will continue to receive full salary payments.

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• Last reviewed: 30 April 2009