Examiners threat may hit universities due to contract ambiguity

Resignations by external examiners in support of the University and College Union’s pay row with institutions could be more likely because of ambiguities over their employment contracts, a legal expert has warned.

While universities may be able to put in place contingency plans over a strike by UCU members on 25 and 26 May, finding replacements for external examiners at short notice will be more difficult, warned solicitor Christopher Mordue, a partner at law firm Pinsent Masons who specialises in law relating to higher education.

External examiners have been asked to quit these roles by the UCU and not take up any new examiner commitments as part of industrial action over the 1.1 per cent pay offer for 2016-17.

Staff are advised to give due notice to universities, which means many examiners must honour commitments this summer to avoid being in breach of contract.

However, the wide variety of wording in use in contracts for external examiner appointments could create ambiguity and disputes about the amount of notice an examiner is legally required to provide, said Mr Mordue.

“UCU are telling people not to breach their contracts, so it is important to look at the exact details of that contract to understand the examiner’s legal rights and obligations,” he said.

“We’re already seeing examples of examiners seeking to resign with immediate effect and assuming they can do so because the appointment letter does not specify a notice period,” he added.

However, in those cases “the legal position may well be that the examiner can’t resign or would at least have to give reasonable notice”, Mr Mordue explained.

It was also unclear how far universities would seek redress for any breach of contract, he added, although universities would, in principle, be able to bring a damages claim.

“If an external examiner withdraws from their appointment in breach of their contract and this leads to degree awards being delayed, universities could join the examiner as a co-defendant to any action brought by the student and look to make them ultimately liable for any compensation,” he said.

James Newell, professor of politics at the University of Salford, is one of the external examiners to have quit his role in support of the UCU action over pay.

He said he would need to fulfil external examiner duties at a London university in June as it fell within a six-month notice period, but he would not take up any further posts until the pay dispute was settled.

“The boycott could be effective as it is akin to a marking boycott as, without the external examiners, the whole marking system could grind to a halt,” he said.

Asked if universities needed to standardise contracts for external examiners, Mr Mordue said there were “lessons to be learned”, with institutions needing to “make sure that there are clear restrictions which prevent a resignation taking effect before their work for that exam cycle is completed”.

jack.grove@tesglobal.com