UK University “Sweatshops” are in Criminal Violation of Health and Safety Law
How c.100,000 UK academic and administrative employees are illegitimately denied rights to a legally limited working week, rest and relaxation
This Medium article is complimented by a full academic paper, published in the Journal of Higher and Further Education. A preprint is available via Research Gate.
Over the last decade, UK Universities have increasingly demanded high, unsustainable and unsafe working hours from both academic and professional service employees (1). The result of these conditions has been growing inefficacy and personal injury, as well as disenchantment, unrest and continual Industrial Action (UCU 2013 & 2021; Guardian 2023).
What has never before been apreciated— including by the University College Union (UCU), the formal, legally constituted representative of these employees — is that these exploitative and dangerous working conditions are only possible, as of 2006, due to the direct violation of fundamental Health and Safety law by most UK University employers.
Specifically, Universities have failed to appropriately uphold the employment rights of an estimated 100,000+ academic and senior administrative employees by denying them an otherwise inalienable right to legally protected maximum weekly working hours, and dodging the legal requirement for all employers to ensure maximums are not breeched. This places UK universities management, and the University and College Employers Association (UCEA) — evidenced as actively encouraging this criminal position — as responsible for one of the biggest employment rights violations of white-collar workers in the history of the European Union. The charge of being ‘intellectual sweatshops’, as implied by other commentators, such as Steven Jones, is finally fully legitimate.
The situation here is highly complex and many might prefer to start with a micro and/or meso-explainer. However, the fully detailed and rigorous explanation cannot be brief, and this full length article is broken into two parts.
Part 1 outlines the EU and UK law that should currently protect all European and UK knowledge economy workers— including all UK university employees and all members of the UCU— from excessive, unsocial and dangerous working hours. The focus is on the universal protection afforded and the existence of certain exceptions that might be claimed by employers. Most importantly, analysis traces the definition and limitations of such exceptions as established by EU and UK jurisprudence: with a focus on the category of “autonomous workers”.
Part 2 then exposes the way in which universities have systematically violated this law through the construction of illegal Terms and Conditions that deny staff rights to maximum weekly working hours. The focus is on the claim of university employers and UCEA that staff are “autonomous” and therefore do not need working time protection; however, critical analysis demonstrates this claim to be entirely unjustified and therefore, categorically illegal.
Overall, this article attempts to blow the whistle on an unthinkable, to some extent entirely unbelievable, social reality of criminal practice and human harm in the tertiary economy of one of the most economically wealthy countries in the world. The perspective presented has been built by the author drawing on first hand research and professional legal opinion, including that funded by the UCU.
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Part 1: The UK Legal Protection of Working Time, to which all University Employees are entitled
- The Emergence of EU & UK Legislation: Universal Entitlements to Rest and Relaxation
The European Union (EU) has done a significant amount to consolidate and advance the legal rights of citizens. Of interest here is its long-standing agenda to actively protect workers from one of the most significant and fundamental pressures: excessive working hours.
Back in 1993, the EU built on Principle Ten of European Pillar of Social Rights and Article 31 of Charter of the Fundamental Rights, to establish the Working Time Directive (WTD, 2003/88/EC). The intention of this legislation was to universally protect workers’ Health and Safety (H&S), in part, by legislating for a universal maximum number of working hours per week.
The objective underlying the WTD (2003/88/EC) was to establish protected time for aspects of a fulfilling and sustainable human life and livelihood, separate from the hours contractually sold to an employer for work. A key aspect of this legislation was to nurture appropiate opportunity for rest and relaxation (HSEN 2019). In physical and knowledge focused employment, this is well recognised to reduce the impact of errors or accidents resulting from a lack of rest and concentration (Peetz and Murray, 2011). Moreover, the responsibility to protect time for life is understood to provide the foundation of employee welfare: with long hours, particularly those worked involuntarily, being positively correlated with poor mental health (De Moortel et al., 2017).
To ensure an upper bound on the involuntary time an employer might contractually require, the EU’s WTD (2003/88/EC) established a limit of 48 hours (CHAPTER 5, Article 6, B), to be evaluated over a reference period not exceeding four months (CHAPTER 5, Article 16, B). Clearly the established maximum is very high and arguably already an inappropriate concession to the interests of the employer over those of the employee; therefore where this is broken, the conditions are truly severe.
A further expectation of this law was that employers undertake all reasonable steps to monitor actual working time, and therefore ensure that the upper limit is never broken. This in itself was a gain for workers, as they essentially have the legal right for their hours to be recorded as an indisputable record of the real hours they work.
Despite the fundamental entitlements on which the limitation of working time was constructed, the EU Working Time Directive provided for some limited exceptional cases where maximum working time protection was not provided. These cover specific sectors of employment, and other additional “derogations” based on the specific nature of some work (CHAPTER 5, Article 17). The derogation at the heart of the discussion here is that:
“1. With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Article 3, 4, 5, 6, 8 or 16 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of:
( a) managing executives or other persons with autonomous decision-taking powers;
( b) family workers; or
( c) workers officiating at religious ceremonies in churches and religious communities”.
As a member of the EU, the UK Government translated this universal H&S protection into domestic law via the Working Time Rule 1998 (№1833) (see ACAS explainer). Specifically of interest here, is Part 2, Regulation 4, which outlines that:
“(1)…worker’s working time, including overtime, in any reference period which is applicable in his case shall not exceed an average of 48 hours for each seven days.
(2) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that the limit specified in paragraph (1) is complied with in the case of each worker employed by him in relation to whom it applies”.
Further responsibilities were placed on the employer, specifically that they shall (Part 2 Regulation 9):
“(a) keep records which are adequate to show whether the limits specified in regulations 4(1) and 6(1) and (7) and the requirements in regulations 7(1) and (2) are being complied with in the case of each worker employed by him in relation to whom they apply; and
(b) retain such records for two years from the date on which they were made”
The UK WTR 1998 also drew on legitimate derogations to create exceptions to this otherwise universal law. The most pertinent of these for analysis here is that exception might be applied (UK Government 1998, Part 3, Regulation 20):
“to a worker where, on account of the specific characteristics of the activity in which he is engaged, the duration of his working time is not measured or predetermined or can be determined by the worker himself, as may be the case for:
( a) managing executives or other persons with autonomous decision-taking powers;
( b) family workers; or
( c) workers officiating at religious ceremonies in churches and religious communities”.
The UK law was therefore a virtual copy and paste of the European legislation. However, the wording of this regulation is evidently, and notoriously, imprecise.
2) The UK Government’s Attempted Distortion of European Legislation
The EU’s Working Time Directive has experienced a turbulent history (Nowak 2018). Indeed, given the interpretive space created in the drafting of European legislation, the UK Government updated it’s corresponding law in 1999 in a conscious effort to provide more precision in the interpretation and application of European rules.
More specifically, the UK government attempted to promote the interests of employers who contracted staff, specifically who had 1) some part of work structured by managers and 2) another portion available for more flexible delivery.
As such, the Working Time Regulations 1999, Statutory Instrument №3372, Terms and Conditions of Employment, amended the 1998 legislation. Of most interest here is part 4, that ordered the renumbering Regulation 20 as paragraph (1), and augmenting it with a promulgation in the subsequent paragraph to state that:
“(2) Where part of the working time of a worker is measured or predetermined or cannot be determined by the worker himself but the specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work the duration of which is not measured or predetermined or can be determined by the worker himself, regulations 4(1) and (2) and 6(1), (2) and (7) shall apply only to so much of his work as is measured or predetermined or cannot be determined by the worker himself”.
To further clarify the situation, the 1999 act also mandated the creation of guidance “to enable employers and workers affected by these Regulations to understand their respective rights and obligations under them” (UK Government, 1999 Regulation 5). This guidance was published by the Department of Trade and Industry (DTI) and offered the enhanced advice that “employers must make sure that workers can take their rest, but are not required to make sure they do take their rest” (See: European Court of Justice, ruling 2006).
On the basis of the above, it would be perfectly understandable for University employers to insist that because academic and senior administrative staff have a degree of flexibility in their roles, they might be legitimately classified as autonomous workers; as employers, institutions have no obligation to take any interest in how many hours staff are required to work.
If this was the end of the story, UK universities would be perfectly correct in their historical and current implementation of the law. However, disappointingly, this is far from the case.
3) The European Court of Justice fights back: UK legislation ruled illegal
On 21 March 2002, the European Commission (EC) raised informal objection with the UK’s implementation of the original Directive, specifically the phrasing added in 1999 (above). With no informal resolution the Commission brought legal action against the UK Government in the European Court of Justice, the subject of which is uncontestably relevant to UK stakeholders — be they employers, employers associations or unions — seeking to understand the application and relevant derogations of unmeasured working time: specifically, those with some portion of directed and some portion of more flexible working arrangements, as in the HE sector.
In their submission to the European Court of Justice, the Commission objected to the UK’s implementation of derogation around unmeasured working time. Specifically, the Commission challenged the UK’s claim that where only to that part of an employees tasks are measured, predetermined or cannot be determined by the worker himself, overall, the employee should be categorised as “autonomous”.
Indeed, by contrast to the UK’s application, European Communities argued, the unmeasured derogation from protection should be applied “only to workers whose working time as a whole is not measured or predetermined or can be determined by the workers themselves” (European Court, 2006, point 16).
The Commission also submitted that the Department of Trade and Industry Guidelines endorsed and encouraged employers to engage in practices of non-compliance with the requirements of the EC Directive. This was because employers were explicitly told that while they could not deny workers their rights, they had no obligation to ensure workers actually invoked and benefited from the rest periods to which they are entitled (European Court, 2006). This, the European Commission asserted, was a violation of the European law on the obligation of employers to ensure workers were treated in the first instance according to the universal rights given them by fact of their citizenship.
The outcome of this case was a damming indictment of the UK Government’s interpretation and application of the primary EU law. It demonstrated that to ensure that the rights conferred on workers by Directive 93/104 were fully effective, Member States were under a legal obligation to guarantee that each of the minimum requirements laid down by the Directive was observed. This included the right of Workers to benefit from effective rest.
In fact, the European Court judgement summarises that this was the only interpretation which accords with the objective of the directive is to secure effective protection of the safety and health of employees by allowing them to enjoy the minimum periods of rest to which they are entitled (European Court, 2006, point 40).
The European Court ultimately ruled that the UK’s transposition of the Commission’s Directive did not guarantee compliance with either the minimum requirements laid down by Articles 3 and 5 or its essential objective.
Of perhaps greater importance to employers, unions and workers in UK HE, the Court upheld that compliance with the obligations set out by Directive 93/104 should not, as a general rule, extend to allowing an employer “to force his workers to claim the rest periods due to them” (European Court, 2006: see point 43).
It was agreed that Member States are to take the measures necessary to ensure that workers are entitled to actual rest, with a view to ensuring effective protection for health and safety. Ultimately, the Court made it unambiguously clear that:
“So far as concerns the scope of the derogation set out in Article 17(1) of Directive 93/104 [concerning unmeasured working time], it is apparent from the express wording of that provision, as the Commission rightly pointed out, that it applies only to workers whose working time as a whole is not measured or predetermined or can be determined by the workers themselves on account of the kind of activity concerned” (European Court, 2006: see point 20).
As a result of this legal challenge, the UK Government reworded the WTR in 2009, removing Paragraph (2) of regulation 20 (unmeasured working time), as previously added in 1999 (UK Government, 2009). This was to account for the impropriety of the previous interpretation around workers who had only part of their time measured or predetermined. As such, all workers in the UK have had the right to be treated according to this interpretation since 2009 (see I-Corona 2006).
While the UK is no longer directly subject to the jurisdiction of European courts, the UK Working Time Regulation was promulgated as a direct representation of European law. Therefore, its logics and subsequent jurisprudence would be at least relevant in interpreting post Brexit disputes, and a further relevant consideration is the EU Interpretive Communication on Directive 2003/88 / EC (2017). Here it was outlined that:
“The [European] Commission considers that the derogation [of maximum working time] could encompass certain high-level managers whose working time, as a whole, is not measured or predetermined since they are not obliged to be present at the workplace at fixed hours but can decide on their schedule autonomously. Similarly, it could for example apply to certain experts, senior lawyers in an employment relationship or academics who have substantial autonomy to determine their working time.
However, as the document continues, not all workers who fall into the categories listed, for example not all managing executives [or other categories of workers], would qualify for the so-called ‘autonomous workers’ derogation under Article 17(1)” (European Union, 2017 Author Emphasis).
Moreover, EU Interpretative Communication outlined that, based on case law (specifically that discussed above): “the ability of the workers to decide on both the quantity and the scheduling of their working hours therefore appears essential” (European Union, 2017) for an employer to legitimately claiming a derogation of their otherwise universal responsibility to uphold worker rights.
Finally, and perhaps most clearly stated, the European Communication cited the case raised against the UK:
“[in] that the derogation cannot apply to cases in which only part of the working time is not measured, predetermined or can be determined by the workers themselves. See Case C-484/04, Opinion of Advocate General Kokott, 9 March 2006, Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland, ECLI:EU:C:2006:166, paras. 22–32” (European Union, 2017).
Here it becomes relevant for employers and individual employees to reflect on the nature of their duties and therefore the characteristics of their job roles and specific experiences: the question being if the employer would likely be successful in arguing that university staff are indeed entirely or even partially, genuinely, autonomous, or if such roles merely contain some flexibility.
Part 2: The Emergence of Illegal Practices in UK Higher Education
1 ) The Empirical History and Reality of University Terms and Conditions
In 1990, the UCU and UCEA agreed a Post-92 contract of employment (UCU, 2016). This document set standard Terms and Conditions for academic employees in Higher Education (HE) and it included a stock expectation on working hours. Specifically, academics were to be told that given the nature of academic research and teaching…
“you are expected to work such hours as are reasonably necessary in order to fulfil your duties and responsibilities. Those duties include teaching and tutorial guidance, research and other forms of scholarly activity, examining, curriculum development, administration and related activities. You are expected to work flexibly and efficiently, and to maintain the highest professional standards in discharging your responsibilities, and in promoting and implementing the corporate policies of (the institution)” (UCU, 2016).
While these T&Cs were for academic employees of institutions created after 1992 they have come to define the conditions experienced by staff across UK HE. Through institutional efforts to harmonise T&Cs this expectation can be increasingly traced through the governance of professional service, or administrative support staff, and these expectations can now also be found in pre-1992 institutions.
Some Universities provide a limited explanation to their Employees about their rights through their T&Cs. For example, one UK university has maintained the same position on working hours since 2015, with the current policy document summarising that:
“For academic staff, research staff, other related staff and staff in grades 9 and above, there are no formally defined hours of work, it being expected that members of staff will work such hours and such days as are required by their Executive Dean/Head of Department for the proper discharge of their duties”.
Other Universities have gone to extended lengths to construct T&Cs that tightly advocate the Employers right not to limit the hours of work expected of Employees. In February 2008 one University published revised T&Cs, where “There are no normal hours of work specified for Academic Staff in the University. Notional hours are 36.5 f[ull] t[ime] e[equivalent]. Staff are expected to work such hours as are necessary to meet the responsibilities of the position to which they are appointed”.
At this point, no justification for this exception was codified for the employee, and the lack of rights to Health and Safety protection was presented as matter of fact. In October 2016 the institution further reformed T&Cs to the current version, which then regulated employment, again presenting academic and professional service staff as exempt from UK Working Time Rule, Part 2, Regulation 4).On this occasion, the T&Cs include a justification, although with text from the original law heavily and significantly modified, to state that:
“There are no normal hours of work specified for Academic, Research and Teaching posts. The duration of your working time is largely not measured or predetermined and can be self-determined to a significant extent. You are expected to work such hours as are necessary to meet the responsibilities of your position and while not bound by the provisions of the Working Time Regulations’ limits on average working hours, you are not expected to work excessive hours” (Author’s bold).
Elsewhere, Universities make it clear that their terms and Conditions consider academics staff to be excluded from the protection of the UK’s Working time Regulations following advice from UCEA. In one example it is noted that:
On the basis of advice from the Universities and Colleges Employers Association (UCEA) the following groups of staff are considered to be exempt from all aspects of the Regulations except the provision for annual leave: All Academic Grades, Admin/Library/Computing/Other Related Grade 6, Research Grade IV. N.B. In the case of staff in other Academic Related grades, any hours worked which are not measured or predetermined or can be determined by the member of staff him/herself will not count towards the regulations on Maximum Weekly Hours and Night Work.
While UCEA have been approached by the author to engage with this issue, they have declined to provide any meaningful response.
2) A Critical Analysis of University Terms and Conditions
The position of the above Universities, and indeed, the vast majority of UK HE institutions following the nationally agreed model and advice from the UCEA, can be fundamentally critiqued with relevant jurisprudence that has fallen out of broader legal process (discussed previously).
Where university employers do outline the reasons for withholding Health and Safety protection, wording is like WTR Regulation 20: which states Regulation 4 (maximum working week) does not apply if “the duration of his working time is not measured or predetermined or can be determined by the worker himself”. However, there is categorical difference in the wording as university T&Cs modify the phrase to withhold protection where “working time is largely not measured or predetermined”. Evidently the regulations refer to “duration of his working time” i.e. that employers can only claim exception to the university responsibility to protect against excessive working time where an individual employee’s working time as a whole is not measured or predetermined.
This is because, as above, relevant case law — Commission of the European Communities v United Kingdom [2006] ICR 592 — establishes that Regulation 20 must be interpreted narrowly and where a worker does predetermined and none predetermined work, the employer cannot argue that the whole of the work is unmeasured.
More relevantly, following the 2009 amendment of the UK’s Work time Regulations discourse and advice has been more than assessable to UK managers from credible sources. The most prominent of these examples is the UK’s Health and Safety Executive (HSE), the body charged with the operationalisation of the maximum working week by the WTR1998 legislation. This body, which should be the first recourse of any employer seeking clarification, unambiguously states that:
“Regulation 20(1) disapplies most of the working time limits if a particular worker’s hours are not measured or predetermined on account of the activity in which they are employed, or if they can be determined by the worker personally. Essentially this applies to workers who have complete control over the hours they work and whose time is not monitored or determined by their employer. The categories of worker cited in the Regulations are only examples and are not exclusive. Regulation 20 does not disapply Regulation 8 (patterns of work)” (HSE, No Date — Author emphasis).
In this light, it can be reasonably expected that competent employers and union legal advisers — following the law and genuinely doing what is expected of them to promote work life balance and good physical and mental health — might have integrated the UK WTR1998 as updated in 1999, but would then have conformed to further changes in 2009.
Even if university employers and UCEA were unaware of, or unable to understand the HSE’s guidance, business and legal intelligence platforms, to which University’s pay subscriptions went much further in outlining the facts and implications of the EU case against the UK. One example of this available advice come from I-Coroner (2006), and again unambigiusly outlines that:
The UK accepted that the scope of this regulation went beyond the derogation provided for in the Directive. The regulation was amended with effect from 6 April 2006. The ECJ ruled the UK had been in breach of the Directive, prior to the amendment, in applying the derogation provided in Article 17 to workers whose working time is only partially not measured or predetermined, or whose working time can be determined partially by the worker himself or herself.
In this light, for university employers and their collective association to have failed to observe this change of law and the resulting implications is both morally and professionally inexcusable.
Where proponents of the status quo persist in arguing that evaluation is more a question of degree that the absolute definition provide by the HSE, these arguments can still be rigorously critiqued. For example, it is an empirical fact that the working hours of university employees are not measured ex-post. However, this is only because employers have chosen not to measure them. Indeed, if ex-post empirical measurement was determinative of the issue, any and every single worker not made to clock-in or clock-out would be outside the WTR. Plainly, this should not be sufficient to escape the regulations.
Furthermore, when the characteristics of university employment are meaningfully considered, as should be the duty of the employer accepting to the law, it is unequivocally evident that employees are not autonomous. For anyone with experience of this sector, many examples will come to mind, but for the sake of making the argument clear, analysis of university work produces the following conclusions.
The vast majority of even senior grade Professional Service Staff, and Academic employees, — some of which might be entry level upwards — will have a designated Line Manager, contractually required through their own Job Description to set tasks, including timelines and to monitor achievement against this framework. Job descriptions include the ability to deliver outcomes to set timelines; if this were not true, there would be no reasonable possibility to run any organisation at the size and complexity of a university. As such, subordinates uncontestably lack autonomy because:
- Academics are given daily teaching timetable with specified hours of teaching work. In many cases the duration of individual teaching sessions is not flexible as universities and individual departments have set standardised contact hours for lectures and seminars, and certain combinations of such for modules of a specific credit weighting. Even where academics are given more flexibility over the pedagogies of their teaching, in terms of appropiate contact hours, these are subject to regulation through the Government’s Consumer Markets Authority (CMA, 2015) and can only be practically varied with around one and half years’ notice. In the cases of junior academic employees with heavy teaching loads, this might include prescheduled classes everyday Monday to Friday, and/or include a significant number of hours within a given day.
- University employees are required to attend regular and multiple meetings where participation is a matter of formally defined composition, such as Staff Meetings, Management Meetings, Team Meetings etc. Some of these can take multiple hours and there might be many multiple mandatory meetings each week. Academics and Professional service staff have administrative roles for which they have responsibility for the deliverables, including attendance at meetings.
- Universities set expected and required timescales for marking student work according to University working days — which largely contractually include the weekends but are not counted in policy timelines — and expect staff to comply with this.
- If staff do not complete, or decline to complete their duties, including attendance at fixed classes and meetings, without sufficient legitimate justification (illness, clash of employer prescribed commitments etc.), there would be initially informal and then formal disciplinary action. This work is therefore not voluntary or autonomous.
- Employees are increasingly required to undertake mandatory training courses. This includes to ensure compliance with government legislation, for example GDPR legislation. These training sessions are set in their duration — as even where they are undertaken online, there is a minimum amount of time needed and this is often explicitly stated, including mandatory tasks to fully watch certain videos etc. Physical training is scheduled by central services and in many cases, there are deadlines for the completion of learning imposed, monitored and enforced.
- As employees with duties connected to a fixed timetable set by the university, and overseen by a Line Manager, university staff are required to request Annual Leave. University employers reserve the right to deny requests based on their operational priorities, defined by time sensitive obligations. There are periods of time when leave cannot be requested / will not be sanctioned, as per the Line Mangers decision making; in many cases, academics are not permitted to take leave during the teaching terms and semesters. When Annual Leave is granted, pay is often calculated by the university’s record system in hours, and a specific number of hours is attributed to a day’s leave. It is not possible for an employee to claim more hours on the basis that they would have worked more than the hours stated in the notional contract, even if that would have been the case where the employee had not taken leave.
- Many Universities have institutional workload frameworks and models, and where senior management have failed to develop these essential resource management tools, many individual departments within these institutions have their own workload modelling, with estimated numbers of hours required to complete a variety of tasks. In some cases, units of time are superficially obscured, for other units such as “points”. However, their grounding is measured and predicted units of time. Staff are allocated duties according to these estimations, with a full quota of work being calculated on the notional contractual time. Again, staff are held accountable if these duties are not completed.
- There are other precariously employed workers in the university sector, such as Session Teaching Payroll/Staff who undertake the very same tasks as contracted employees — for example delivering lectures, seminars and marking assessment. These workers do have their working hours predetermined and explicitly recorded; this data is used to calculate their payment. Such employees, contracted through agencies such as Uni Temps, are explicitly afforded protection of the WTD. However, there is no fundamental difference in the specifics of this work to justify separate treatment, which further points to the illegitimate claim to derogation for contracted Academic and Professional Service staff.
- Universities have both Full Time and Part Time employees, contractually expressed as Full Time Equivalent (FTE) and fractions of such e.g., 0.5 FTE. Both full-time roles and fractional roles are not defined by a maximum number of hours and are both expected to work as many hours as required to fulfil their duties. It is not possible to quantify duties without reference to working time, and where this is declined, the objective justification for, and grounds for any partial, part time payment, lacks sufficient quantitative grounding to be legally justified.
- Where employees engage in legally mandated Industrial Action, they are deducted a portion of their wage based on time calculations, only possible where a set daily number of working hours is assumed: presumably as a defined working day acceptable to employer for these purposes. It would not be accepted if staff declare themselves not working that day because of their “significant autonomy”. Instead, the institution would force the individual to choose between work and being engaged in “Industrial Action” — defined as legally legitimate absence from work.
Given the number of and extent of duties that are proscribed by the employer in duration and scheduling, it is possible to argue that even the work that has some flexibility in the abstract conception is fixed in time: this is because the employer requires this work, and the only opportunities to complete this are around other commitments. On this basis, there is overwhelming evidence that university staff have been denied fundamental rights and protections unreasonably.
Beyond this discussion, another essential question is if some, or a large amount of university employee time is invested “voluntarily”, or if it is indeed work — as defined as “any period during which he is working, at his employer’s disposal and carrying out his activity or duties” — or is voluntary. This is not necessarily straightforward: for example, where the additional work is “research”, and the scope for this is arguably unlimited. However, such a justification almost certainly would not apply to Professional Services employees, and therefore the rebuttal might be easily naturalised. Indeed, Professional Service staff are much less likely to engage in voluntary tasks, such as applying for external funding to support projects of their own initiative. More broadly, it is legally relevant if the tasks performed create any consequence for the employer or the employee if the additional work was not done. If there was no consequence for the employer and/or the employee, the university employer may succeed in arguing that the additional time is voluntarily undertaken by the worker and is not working time. The final question is if these tasks are defined as part of the duties required in the wider working of the contract, in given the nature of job roles, this is very likely the case.
Based on the lived reality of academic university employees, there seems good ground to evidence that work is not legitimately voluntarily. Where UK academics do not apply for funding university income reduces, and this is a significant portion of financial sustainability, often in the realms of 50% of overall revenue. Research outputs are systematically measured and reported through processes such as the Government mandated Research Excellence Framework (REF) and this subsequently impacts funding allocation: therefore, there is a direct link between time used on all research activities and the employers’ interests. If this was not the case, employers would invest much less resource in driving indicators of excellence. In addition, job specifications will include the requirement to apply for funding and create research of various qualities, with the promotion systems increasingly codifying these necessities for advancement. This is often even true for academics on teaching focused contracts, as they are required to show some standard for scholarship and research. Thus, there are very strong grounds for arguing that time invested in more autonomous activities, is not voluntary, as failure to invest such time detriments the interests of an employee and the employer.
Contractual Terms and Conditions often include the caveat that “you are not expected to work excessive hours” and this should be reported to your line manager. However, while the specifics are not entirely aligned, the EU explicitly challenged the UK’s attempt to develop legislation and guidance that protected rights but did not require employers to actively promote these. The same applies where an employer attempts to place the responsibility for avoiding excessive work onto the individual worker: this is both unreasonable and contrary to available jurisprudence, not least the UK Government’s withdrawal of the problematic advice by the DTI (European Court, 2006).
Finally, universities might argue that application of the law within its clearly defined spirt, meaning and technical expectation, would be operationally impossible given the nature of university management. However, while junior doctors were initially excluded from the UK WTR1998, they were integrated by 2004, after a period of transition (BMA, 2022). This therefore evidences that the operational needs of employers are not grounds for withholding the H&S legislation. Indeed, by 2014, the UK Government’s own impact assessment found positive indicators of the legislation (DBIS, 2014). This included the correlated with a widespread reduction in the average hours worked by individuals, as well as more diverse working patterns and an uplift in employment as work tasks were shared more evenly between the working age population.
Conclusion: Past Historical Criminality to Future Historical Remedies
The exceptionally high number of working hours required of academic and professional service (administrative) staff in UK HE are well documented to create widespread and severe mental and physical health determinants. This is not in the interests of the individuals who have their careers and lives unravelled; the institutions that loose otherwise highly capable staff; the growing population of UK university students; or the broader operation of democratic society, so contingent on critical, independent research and engagement. The UCU has long countered these trends through campaigns, including Industrial Action, yet outcomes from such an approach have been limited.
In this context, the above discussion critically interrogated a foundational assumption widely embedded in HE contracts and explicitly supported by the UCU: specially, that academic and senior professional service staff do not need the otherwise universal Health and Safety protections of a limited working week — and hence that employers need not be responsible for planning and monitoring workloads — because these workers are sufficiently autonomous to decide their own working hours and schedules.
By contrast to this status quo position, critical analysis suggests that UK and intrinsically relevant EU jurisprudence seriously undermine claims to the autonomous worker derogation. This is because such exceptions cannot be arbitrarily claimed for whole categories of worker. Instead, the specific characteristics of work must be analysed at the individual scale. Where this analysis is undertaken, it is almost impossible to conclude in any good faith that workers do indeed satisfy the criteria set out in formal jurisprudence.
While the article has outlined at length why university staff are not legitimate exceptions to the universal law, a key quotation is from the UK’s HSE, which makes interpretation indisputably clear, in that the unmeasured working time exclusion only:
“…applies to workers who have complete control over the hours they work and whose time is not monitored or determined by their employer” (HSE, No Date).
Overall, the forgoing analysis of university workers then concluded that while university staff have some flexibility, the specific empirical characteristics of almost all university employees does not satisfy the requirement of “autonomy”. Clearly, even without an in-depth discussion, there are many multiple areas where university staff are clearly directed by their employer : complying with the teaching timetables and attending meetings set by managers being the most obvious, but by no means the only aspects of such work. Therefore, it is argued overall that the current wording of many universities T&Cs are likely based on an illegitimate interpretation of the law, and therefore illegal, and criminal.
Given the potential illegitimacy of the current situation for so many university employees, there is an opportunity for individual university workers, their union and enlightened employers, to genuinely re-evaluate national and local agreements on Terms and Conditions for both academic and professional service employees. Where power-brokers do not take the responsibility to re-examine these fundamentals, individuals and their union have numerous opportunities to press on the recognition of their legal rights.
Where there is sufficient interest from readers, further articles in this series will be produced. In solidarity.
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Notes
(1) professional service employees are often known as “academic related” or “administrative” staff.
