11th May 2015

By Michael MacNeil

In higher education the bosses often consider themselves to sit at the more enlightened and progressive end of the employers’ spectrum. They do, however, preside over obscene levels of casualisation, with ridiculous numbers of zero hour teaching contracts and with 67% of research staff on fixed-term contracts.

Some, but not enough, of the employers are negotiating with us to try and address an unfair system that has been cemented into institutional thinking over years; whereas others are actively trying to turn the screw further. Sadly, the University of Stirling is in the latter camp. Basically, Stirling thought that the unions had no right to be consulted over the dismissals of staff on fixed-term contracts. For UCU, the principle of equal treatment for a vast part of the workforce in post-secondary education was at stake, so the union fought this case.

After 6 years of fighting through four courts, UCU emerged victorious. On Wednesday 29th April, the Supreme Court handed down a judgment that overturned the findings of both the Employment Appeal Tribunal (EAT) and the Inner House and which definitively stated that Stirling University broke the law in 2009 by failing to include fixed-term contract staff in its collective consultation over redundancies.

The essence of Stirling’s case, supported by the EAT and the Inner House findings, was that when an employee made a decision to take on a fixed-term contract, their subsequent dismissal would cease to be a redundancy in law and would instead be for ‘a reason related to the individual concerned’. In effect, they argued, these employees were not being made redundant. This meant, Stirling maintained, that such employees were not covered by the legislation on the statute books at the time, which imposed the duty to consult in the case of collective redundancies numbering more than 20.

The Supreme Court did not agree. In its judgment, the court explained that in arriving at their decision the judges had looked at two issues in particular: the historical intent of the people framing the relevant legislation and whether it was reasonable to characterise the dismissal of a fixed-term employee as a dismissal for some reason relating to them as an individual as a consequence of their decision to accept a time limited contract.

With reference to the first issue, the court found that when the contested piece of legislation on redundancies was drafted, Parliament’s intention was to widen the definition of a redundancy situation to capture time limited contracts and business restructures. Therefore it was not plausible to imagine that Parliament had envisaged a definition that would have excluded anyone who accepted a fixed-term contract.

Secondly, the judgment found decisively that the dismissal issuing from the end of a fixed-term contract is a redundancy regardless of the fact that the employee ‘agrees’ to it. Instead, the Court stated, the question turns on the employer’s decision not to renew a contract and ‘whether the reasons for the failure to offer a new contract relate to the individual or to the needs of the business’. The ending of a research project, the judgment said, ‘would not be a reason related to the individual employee but a reason related to the employer’s business.’

Of course, the immediate impact of this case is strictly limited by the fact that while all this was working itself out the university employers association, disgracefully, took the opportunity to lobby the Coalition government to amend the legislation specifically to exclude fixed-term contracts from the calculation of the number of redundancies that trigger the duty to consult with unions. But this week’s judgment is still important. Firstly, the argument that accepting fixed-term contracts constitutes a reason relating to the individual has been dispatched. Secondly, Stirling broke the law as it stood at the time and the way is now open for the union to make a claim for up to 90 days’ pay for the members it supported. But, as importantly, it’s a huge moral victory for the union. We stood up for fixed-term contract staff and defended their right to equal treatment to the hilt. UK university employers, to their shame, have used every opportunity possible to deny that right. Our view is that the law as it stands now is wrong and we will push for a future government to address this.

It would, of course, be a lot easier if employers stopped trying to find ways of reducing our rights through the courts and political lobbying and spent a lot more time engaging with trade union representatives to improve working lives.