IUS0009

Written evidence submitted by the Department for Education

Overview

Although the Department for Education does not have a role in resolving specific disputes, it is very concerned about the impact on students of industrial action in higher education. During the Marking and Assessment Boycott (MAB), the Department for Education encouraged universities to explore ways of mitigating the impact of this action and encouraged employers and trade unions to return to the negotiating table to find a solution to the pay dispute.

This government believes students should be at the heart of the higher education system. This is why we set up the Office for Students (OfS) to regulate the higher education sector in England and to ensure that students have a positive and fulfilling experience of higher education in a sector that is delivering real value for money. The OfS has published guidance to students on their rights during industrial action[1] and will continue to monitor any further industrial action through their regulatory mechanisms. In addition, students in England and Wales are able to raise a complaint about their higher education provider with the Office of the Independent Adjudicator (OIA). The OIA was set up to provide an alternative to the courts and is free of charge to students.

Background

Higher education provision in England comprises universities, further education colleges and specialist providers. There are over 400 providers registered with the OfS in the UK, of which 124 have the title ‘University’, with over 2.4m students enrolled in higher education in 2021/2022[2].  In 2021/22, total income in the higher education sector was £40.8bn, with approximately £20bn provided by government in the form of tuition fee loans and direct grants for teaching and research[3].

The higher education sector is autonomous and independent from government. The Higher Education and Research Act 2017 (HERA)[4] is clear that the Secretary of State [for Education] must have regard to the need to protect the institutional autonomy of English higher education providers when giving guidance or directions to the OfS, the regulator for higher education in England. In the context of pay and industrial action, HERA states that the Secretary of State [for Education] must not issue guidance which relates to the criteria for the selection, appointment or dismissal of staff, or how they are applied.[5] HERA also specifies that “the institutional autonomy of English higher education providers means the freedom of English higher education providers within the law to conduct their day to day management in an effective and competent way.’’ [6]

The current dispute between higher education providers and the five key trade unions that represent British higher education academic and professional staff (UCU, GMB, Unison, Unite and EIS (Scotland only)) relates to pay and conditions. The dispute has been ongoing since 2018 and has resulted in a several mandates for industrial action since that time, including the MAB from April to September 2023.

As the higher education sector is autonomous, the Department for Education is not involved in pay negotiations between higher education providers and their staff. We understand that the majority of higher education providers participate in collective pay bargaining in which they are represented by the University and Colleges Employers Association (UCEA)[7].

The government believes that institutional autonomy is an important principle, given the significant protection under HERA. There are of course other considerations, such as the need to promote quality, value for money, and greater choice and opportunities for students, which are also vital to ensuring a thriving higher education sector and the best possible outcomes for students.

The government is focussed on improving the quality of higher education, where this is below an acceptable standard, so that students receive the education they deserve and have paid for. We are rightly concerned when these efforts are compromised by industrial action, resulting in lost learning, cancelled lectures and significant delays to the awarding of degrees.

In July 2023, we published the government’s response[8] to the Higher Education Reform Consultation[9], which ran from February to May 2022. This set out the government’s priority to drive up the quality of HE provision so that all students can be confident that they can get the skills they need for jobs that will benefit them, our workforce and economy.  

The government is reducing the maximum tuition fees and loans for foundation years in classroom-based subjects, such as business management and social sciences, from £9,250 to £5,760. This change is due to be introduced from the start of the 2025/26 academic year. The government has also been clear that it would like to see the OfS impose recruitment limits on HE courses that are in breach of its condition of registration B3, which requires higher education providers to deliver positive student outcomes.

The government is working with the OfS to ensure that higher education providers subcontracting all or part of a course to a delivery provider understand their responsibility for the students on those courses and for assuring the quality and standards of provision. We have also commissioned the Institute for Fiscal Studies to conduct research and analysis to develop a new earnings metric and intend to ask the OfS to consider how to incorporate this into its quality regime.

We are aware that over the last 5 years, industrial action, resulting in cancelled lectures and seminars, has affected students across a number of higher education providers. We understand that the impact of this has varied from subject to subject, and from provider to provider depending on which members of staff have chosen to strike.

We know that the vast majority of students were unaffected by the MAB and, in most cases, students received their full results on time, progressing and graduating as normal – a recent survey conducted by UCEA showed that at the end of August 2023, around 2% of final year students in 120 responding universities had not yet graduated[10]. However, at some higher education providers the impact of the MAB was more significant, and we understand that for those students and their families who were affected, the impact was significant and upsetting. No student should have to experience such disruption and uncertainty about progressing to the next step on their career path.

Our ongoing concern about the impact on students of possible future industrial action led the Department for Education to launch a consultation on the introduction of a minimum service level for education on 28th November 2023[11]. In respect of higher education, the consultation sets out a series of questions about the impact of industrial action, including the MAB, on students and the wider community. It seeks to establish if certain students were more impacted than others, and which measures adopted by providers were the most successful in mitigating the impact of strike action. We will consider the evidence gathered through responses to the consultation to decide the most appropriate course of action.

Key facts and timeline

As the sector is independent, the government does not have a role in pay negotiations or industrial relations disputes. Nevertheless, concern about the impact of industrial action on students, including the MAB meant that the Minister for Skills, Apprenticeships and Higher Education, Minister Halfon, engaged with both providers and the trade unions, urging them to find a solution and bring an end to the boycott:

• 2021/22 data from the Higher Education Statistics Agency (HESA) shows 233,930 staff are employed on academic contracts across 216 HE providers in the UK HE sector (83% of staff were employed at English providers).[12]
• Since 2018 there have been two longstanding disputes affecting academic staff in the UK higher education sector: the university superannuation scheme (USS) dispute and the pay & working conditions dispute. The USS dispute was settled in October 2023. [13]The pay and working conditions dispute is still ongoing.
• UCU announced on 24 January 2023 that they would be holding strikes over a period of 7 weeks, in February and March 2023, at all 153 balloted universities, unless UCEA revised their pay offer.
• On 17 February 2023 UCU announced a pause to strike action and seven strike dates were suspended to allow negotiations “to continue in a constructive environment”. Industrial action resumed from 15 March[14].
• On 17th April 2023, the University and College Union (UCU) announced that members had rejected pay and conditions proposals[15].
• Consequently, a national MAB commenced on 20th April 2023.[16] Staff at 145 universities have UCU membership and therefore this action had the potential to affect up to 145 universities across the United Kingdom.
• On 22nd June, Minister Halfon and Department for Education officials met with Universities UK (UUK), the Russell Group and the Universities and Colleges Employers Association (UCEA) to better understand the impact that this boycott could have on students and the mitigating actions their members were taking to protect students’ interests.
• On 23nd June, Minister Halfon wrote to UUK and the Russell Group about the boycott, urging them to continue to do everything within their powers to protect the interests of students. Minister Halfon also wrote to the OfS expressing support for their 12th June letter to HE providers affected by the boycott[17].
• On 27th June, Minister Halfon attended a meeting with higher education sector mission group representatives to discuss the situation and to better understand the impact on students.
• On 11 August, Minister Halfon wrote to UCEA [18]and UCU urging them both to resume negotiations.
• On 6th September 2023, a majority of UCU members voted to suspend the MAB and the UCU wrote to employers to withdraw the MAB. [19]
• There was local strike action at a number of higher education providers between 25th and 29th September. We understand that there were 5 days of local strike action at around 36 providers and 1 day of local strike action at 10 providers[20].
• On 30th September, the UCU mandate for industrial action including the MAB came to an end.
• On 19th September, seeking a new mandate for industrial action, UCU announced a national ballot in the pay and conditions dispute which opened at 143 providers and ran until 3rd November.[21] The ballot was unsuccessful as the UCU failed to reach the minimum 50 per cent turnout threshold required by law[22].
• On 2nd October, the Secretary of State announced that she would consult on the introduction of a minimum service level for higher education.[23]
• On 28th November, the Department for Education launched a consultation on minimum service levels in education.[24] For higher education, this sets out a series of questions about the impact of strike action and the MAB on students and the wider community. It seeks to establish if certain students were more impacted than others, and to understand which measures used by providers were the most successful in mitigating the impact of strike action. Following the consultation, we will consider the responses and possible implementation options.

Q1. How have students been impacted by industrial action at their universities?

The Department for Education did not gather information about the impact of strike action at individual higher education providers. We engaged closely with the UCEA, which conducted surveys with 84% of higher education providers involved in the MAB to understand the impact on students.

The most recent survey conducted by the UCEA between 16 and 22nd August 2023 with 120 providers responding demonstrated the following:

-          93 higher education providers reported that all of their final year students had been able to graduate;

-          14 higher education providers reported that less than 2% of their final year students were yet to graduate; 6 reported that between 2% and 10% of their final year students were yet to graduate; and 7 reported that more than 10% of their final year students were yet to graduate;

-          The 120 higher education providers that responded to the survey reported that a total of 11,325 final year students were yet to graduate. This represented 2% of the final year student population (526,379) of these responding providers;

-          19,667 final year students had graduated by 22nd August but were affected in other ways (i.e. graduation delayed past when it would normally occur, graduating without a classification or without all marks);

-          In summary, 6% of the final year student population of the 120 responding institutions had been either unable to graduate or were otherwise affected by the MAB[25].

It is therefore our understanding that only a minority of students were affected by the MAB. However, even one student who has their education disrupted is one too many. The Department for Education is clear that all students must receive a standard of education which is of acceptable quality, provides value for money and allows them to receive their intended qualification so they can progress along their career pathway.

Q2. What mitigations do universities have in place against industrial action negatively impacting students?

The higher education sector is autonomous, and the Department for Education does not have a role in resolving specific disputes. However, we are concerned about the impact of recent industrial action on students and are keen to understand how similar disruption can be minimised.

That is why, in the ongoing consultation[26] on the introduction of a minimum service level for education, we have asked explicitly which measures adopted by providers were the most successful in mitigating the impact of industrial action.

During the summer, Department for Education officials engaged closely with providers to understand the various actions they had taken, and which were most effective.  Minister Halfon also attended a meeting with higher education sector mission group representatives on 27 June to discuss the situation and to better understand the impact on students.

Higher education providers were impacted in different ways and we understand that mitigations included:

1. Discouragement: withholding up to 100% of pay and appealing to the striking staff to consider the detrimental impact of their action on students.
2. Alternative markers: asking non-striking staff members to increase their workload and bringing in external examiners/consultants.
3. Relaxing regulation: such as reducing the number of people who are on examining panels.
4. Final year student prioritisation: prioritising marking for final year students, to ensure they were able to progress to the next stage of their education or employment; granting provisional unclassified awards until more marks became available; or awarding degrees based on existing marks and evidence.

The Department for Education understands that many higher education providers awarded degrees where they had enough evidence of a student’s prior attainment to do so. For example, the University of Manchester reported that they would give degree classifications to undergraduates with marks in at least two-thirds of their final-year modules[27]. 

Other providers issued provisional results or certificates to allow students to graduate on time, with the class of degree to be issued when assessments were completed. For example, the University of Edinburgh permitted affected students to participate in a graduation ceremony but stated that in rare cases students may not be found to not be eligible for an award once marks were returned[28].

At the University of Nottingham, students affected by the boycott were able to choose to accept a final mark and degree classification based on work that had been marked, and graduate as normal in July, or choose to wait for all their work to be marked to receive their degree classification. If students chose to wait, they could graduate in July without receiving a degree certificate or attend a later graduation ceremony.[29]

We understand that when the MAB ended, many higher education providers required their academic staff, including those who participated in the MAB, to resume marking at pace[30].

While mitigations were put in place to avoid adverse implications for students, the department is very concerned about the possibility of similar disruption in future - in particular where this may result in delayed or deferred job offers, or implications for access to graduate trainee or post-graduate opportunities.

Q3. Why did the impact of the recent Marking and Assessment Boycott (MAB) vary so much between different universities? 

The Department for Education understands that the impact of the MAB was greater in some higher education providers than in others, and that this was at least in part due to the differing levels of trade union membership and industrial action. It is also likely that the mitigations or combination of mitigations, as well as provider-specific rules on awarding degrees, employed by higher education providers had a differential impact.

Q4. What action are trade unions taking to mitigate the impact of their industrial action on students? 

The Department for Education did not engage directly with trade unions. However, we are not aware of any actions taken by them to mitigate the impact of industrial action and the MAB on students.

Q5. What action did the Government take to mitigate the impact of the MAB on students?

Given the independent and autonomous nature of the sector, the government did not have a role in the dispute resolution process. However, the Department for Education is very concerned about the impact of the MAB and sought to encourage all parties to find a solution.

In June 2023, Minister Halfon held discussions with the Russell Group, Universities UK (UUK) and UCEA to better understand the impact on students and the mitigating actions their members were taking to minimise disruption. The Minister also wrote to the Russell Group and UUK, encouraging them to continue to do everything within their powers to protect the interests of students during this phase of industrial action[31]. On 11 August, the Minister wrote to UCEA and UCU urging them both to resume negotiations[32].

Initial teacher training

The MAB had the potential to disrupt Initial Teacher Training, as candidates are typically required to prove that they have received their degree to begin postgraduate courses. The Department for Education therefore agreed some limited relaxations to the time by which ITT candidates were required to provide evidence of their undergraduate degree, to enable all suitable candidates to start their courses in September and take the next steps in their training. Universities and school-led ITT providers that offer ITT were able to recruit trainees whose degree status was not yet confirmed because they had been impacted by the boycott, as long as their degree status was confirmed before the award of QTS.

International students and visas

The government implemented a discretionary arrangement to ensure students could still apply to the graduate visa route during the marking boycott. Where a student had to apply to extend their permission whilst waiting for their results due to the MAB, they were exceptionally exempt from meeting academic progression requirements whilst applying for the Graduate Route for a temporary 8 week period. At the end of this period they would have to provide their results to the Home Office or their Graduate Route application would be withdrawn.

All other requirements of the student route, including a new CAS (Confirmation of Acceptance for Studies), still had to be to be met and the Home Office discretionary arrangement ensured that no students could be awarded a Graduate Route visa without providing their results at the end of the discretionary 8 week period. We encouraged the sector, including sponsors, to drive the dissemination of this flexibility, as the circumstances were the result of a dispute between higher education providers and their employees.

Contingencies for civil service graduate schemes

We adjusted the application window for the Civil Service Fast Stream to open at the later date of October 12th and remain open for 4 weeks. This gave university students longer than ever before to apply. In managing students holding an offer from the Civil Service which was dependent on a degree classification, but which might have been impacted by the MAB, we took a flexible and pragmatic approach.

Minimum Service Levels in Education Consultation

The Department for Education is keen to understand in more detail the extent and scope of the impact of the MAB. The Minimum Service levels in Education Consultation, launched on 28th November, asks several questions about how the boycott affected individuals, higher education providers and the wider community, as well as any impacts on recruitment, and the domestic and international reputation of the British higher education sector. We will consider the responses received to determine how the government can best support higher education providers to mitigate the impact of any further industrial action.

January 2024

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