Force Majeure? Farce Majeure

Published: 6th May, 2020

Tomorrow there is an ‘urgency committee’ meeting of the University’s Senate. UCU has no representation on Senate, but we are usually permitted to send an observer. We have not been invited to tomorrow’s emergency meeting. We only learned it was taking place via a member sympathetic to UCU. 

One item on the agenda tomorrow is a proposed new Senate regulation entitled ‘Force Majeure’. Legally, a force majeure event refers to the occurrence of an event which is outside the reasonable control of a party and which prevents that party from performing its obligations under a contract. In recent weeks there has been much discussion amongst legal scholars regarding whether COVID-19 constitutes such an event. As framed in the proposed new Senate regulation

Force majeure may include outbreak of disease, such as a pandemic or epidemic, natural disaster, fire, terrorism or industrial action (including such action by University staff). [Emphasis added.]

The regulation goes on to explain ‘the measures [University leaders] may take in circumstances that result from force majeure events’. These include granting leaders sweeping powers to override the University’s usual regulations concerning student assessment (both examinations and coursework), progression and the award and classification of degrees, including the composition of examination boards. The proposed new regulation also makes provisions where campus-based or distance-learning teaching is disrupted: in these cases University leaders, ‘will aim to offer alternative forms of learning and teaching activity and supervision, which are deemed appropriate for the type of activity’. 

We understand that the COVID-19 pandemic is unprecedented and responding to it requires much flexibility. As a response to COVID-19 the measures proposed in this regulation are not necessarily unreasonable. In fact, many of these measures are already being implemented – with little discussion – and so this new regulation is a post-hoc fix.

What is absolutely egregious is the attempt to categorise industrial action by University employees as a force majeure event. Moreover, whatever the present urgency with regards to COVID-19, there is no such urgency in relation to industrial action: there is absolutely no justification for rushing this through, with that mechanism.  

More generally, the moot point here is the University leadership’s attempt to absolve itself of any responsibility for poor industrial relations on campus that may result in strike action, its attempt to suggest that if its employees take industrial action such an event is outside of its control and is unavoidable. Moreover, we find amusing the implication an event for which both a ballot and 14 days’ noticed are required by law could be described as ‘force majeure’.

We urge all members of Senate – you are our colleagues, many of you are UCU members – to oppose this part of the proposed new regulation. We suggest that the clause ‘industrial action (including such action by University staff)’ could simply be deleted. We ask you to recall that the right to strike is a fundamental one enshrined in international human rights and labour law. Senate Regulation 13 seeks to erode this fundamental human right.