Could UCU open a trade dispute with the Secretary of State?

UCU National has recently received legal advice which has been presented as effectively ruling out a dispute with the Secretary of State over funding, particularly one focused on redundancies.

However, legal advice commissioned by rank-and-file UCU members reached a different conclusion. That advice did not say that an SoS dispute was unlawful. Instead, it identified a potentially viable legal route under existing trade union law, while identifying a number of questions that would need to be resolved in the course of an attempt to raise such a dispute.

The purpose of this explainer is to inform delegates attending the Special HE Sector Conference what UCU National’s position is based on their own legal advice, what the earlier legal advice said, and how members can challenge the interpretation that the SoS dispute is legally impossible.

What is an SoS dispute?

Normally, a trade union conducts a trade dispute with an employer over terms and conditions of employment. For example, UCU members at a university might enter a dispute with their employer over redundancies, pay, workload, insecure employment, breaches of health and safety, the allocation of work etc.

The Secretary of State is not the employer of university staff. At first sight, therefore, a dispute with the government would appear to be a political dispute, rather than a protected industrial dispute. But there is an important provision in British labour law which qualifies this standard understanding.

Section 244(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) provides that a dispute between a Minister of the Crown and workers can, in certain circumstances, be treated as a dispute between those workers and their employer. This applies where the dispute concerns matters which cannot be settled without the Minister exercising a statutory power. This provision recognises that, in some circumstances, a government minister can be involved in a dispute which is nevertheless legally treated as an industrial dispute.

The Higher Education Research Act (HERA) specifies that the SoS does have statutory

powers to adjust funding in the Higher Education sector. It is the case therefore that a Minister could exercise a statutory power to alter funding in the sector. The legal question ultimately boils down to whether employers are genuinely in a position to address employment terms and conditions stemming from the current funding regime (redundancies, workload, insecure work, health and safety issues, diminished research capacity etc) or if the SoS is specially equipped by an Act of Parliament to address the prevailing employment terms and conditions issues in the sector.

What did the legal advice commissioned by rank-and-file members say?

Professor Alan Bogg of Old Square Chambers was asked to advise on whether UCU could pursue a lawful industrial dispute with the Secretary of State over the funding crisis. His conclusion was not that such a dispute was unlawful. On the contrary, he described the proposal as having:

“the potential to be a viable and innovative route”

He identified several issues that would need further investigation. These included:

1. What statutory powers does the Secretary of State possess over higher education funding?

2.    Can funding be earmarked for employment-related purposes?

3. Can UCU demonstrate that the employment dispute cannot be settled without the Secretary of State exercising those powers?

4. Can UCU establish that universities themselves cannot resolve the dispute within the existing funding framework?

5. Can the dispute be formulated so that it is predominantly about industrial matters rather than political or ideological opposition to government policy?

These are substantial legal questions. But they are questions about how to construct a legally robust dispute. They are not the same as a conclusion that an SoS dispute is impossible.

What has UCU National’s new legal advice said?

The position communicated by UCU Vice President Dyfrig Jones in May 2026 is considerably more restrictive. Their legal advice was provided in response to a question which focused primarily on whether a trade dispute could be opened with the SoS over

the specific issue of redundancies. The advice focuses on section 74 of the Higher Education and Research Act 2017.

Section 74 gives the Secretary of State powers to provide grants to the Office for Students and to attach terms and conditions to those grants. However, HERA also protects the institutional autonomy of higher education providers. In particular, section 75(4) restricts the ability of the Secretary of State to attach funding conditions concerning the:

“criteria for the selection, appointment or dismissal of academic staff”.

UCU National has interpreted this as meaning that the Secretary of State cannot intervene in universities’ decisions concerning the dismissal of academic staff. The advice has consequently been summarised as follows:

●      A dispute seeking an improvement in higher education funding would be political rather than industrial and therefore could not be protected as a trade dispute.

●      A dispute seeking additional funding to address redundancies would not be possible because HERA prevents the Secretary of State from intervening in universities' decisions about hiring and firing academic staff.

●      A dispute concerning additional funding for pay might be possible, but would not address the wider redundancy crisis.

●      Any dispute based on these English statutory powers would principally apply in England, potentially with separate considerations concerning Northern Ireland.

This interpretation has therefore been presented as effectively closing the door on the proposed SoS dispute.

Challenges to this interpretation

1.  A restriction on what the SoS can do is not necessarily a restriction on whether a dispute can be opened

HERA may restrict the Secretary of State’s ability to impose particular conditions on universities. But that is not necessarily the same legal question as: can workers have a trade dispute with the Secretary of State concerning the funding system and its consequences for their employment?

Section 244(2) of TULRCA asks whether the dispute concerns matters which cannot be settled without the Minister exercising a statutory power. The HERA provisions concern what conditions the Secretary of State may lawfully attach to funding. These questions are related, but they are not the same.

For example, suppose UCU’s demand was formulated broadly as:

“We call on the Secretary of State to use the statutory powers available to her to provide sufficient funding to prevent further compulsory redundancies and address the employment crisis in higher education.”

That demand does not necessarily specify that the Secretary of State must order universities not to dismiss staff. Nor does it necessarily seek to alter the criteria by which universities select, appoint or dismiss academic staff. It demands government intervention to address the financial conditions producing redundancies. The Secretary of State would then have to determine what lawful statutory mechanisms were available to respond. A restriction on one possible mechanism for settling the dispute does not automatically establish that the dispute itself cannot lawfully exist.

Importantly, members do not necessarily need to establish that the broadest interpretation of HERA is wrong in order to argue that the dispute should remain open. Suppose, for the sake of argument, that HERA does prevent the SoS from attaching a funding condition explicitly requiring universities to maintain staffing levels. It would still be necessary to ask: does that mean UCU cannot have a trade dispute with the SoS concerning the funding system and its consequences for employment? Or does it simply mean that one particular form of settlement would not be legally available? These are different propositions.

The original legal advice suggests that the central issue under TULRCA is whether settlement of the industrial dispute requires the exercise of a statutory power. If the SoS possesses statutory powers concerning:

●      grants to the OfS;

●  the terms and conditions of those grants;

●  fee limits;

●      funding arrangements;

●  or other aspects of the higher education funding system,

then the legal argument does not necessarily disappear merely because some particular funding conditions are prohibited. It may instead require the dispute to be formulated more carefully.

2.  “Criteria for dismissal” is not necessarily the same thing as “redundancy avoidance”

The wording of HERA is also important to consider. The restriction concerns the: “criteria for the selection, appointment or dismissal of academic staff”.

The proposed UCU dispute is not about determining the criteria universities should use when deciding whom to appoint or dismiss. UCU is not proposing that the SoS should determine which academic should be made redundant; which criteria a university should use to select staff; who should be appointed; or when an individual academic should be dismissed.

The proposal is concerned with the financial conditions under which those decisions become necessary. There is therefore a distinction between controlling universities’ decisions about individual staff and using funding powers to address the financial conditions that are producing widespread compulsory redundancies. It should not simply be assumed that the prohibition concerning dismissal criteria necessarily prohibits every form of funding intervention that might reduce redundancies.

3.  Alternative terms of the trade dispute

Even if one accepts the most restrictive interpretation of HERA - namely, that the Secretary of State cannot attach funding conditions that directly regulate the dismissal of academic staff - it does not necessarily follow that an SoS trade dispute must be based explicitly on redundancies.

The dispute could instead be constructed around other clearly industrial matters covered by s.244(1) TULRCA, such as:

●      excessive or unsafe workloads;

●      health and safety at work;

●  insecure or fixed-term employment;

●  inadequate staffing levels;

●      deteriorating working conditions;

●  excessive allocation of work; or

●      other terms and conditions of employment.

These are plainly matters within the statutory definition of a trade dispute and are directly related to the funding of the sector. The argument would then be that these employment conditions are themselves being produced or exacerbated by the wider higher education funding crisis.

For example, UCU could argue:

Universities cannot provide safe and sustainable workloads because the funding settlement requires them to reduce staffing and increase the amount of work undertaken by existing staff.

Or:

Universities cannot provide secure employment because the funding model makes continued reliance on short-term and insecure contracts necessary.

Or:

Universities cannot maintain adequate staffing levels to uphold educational quality stipulated by HERA because the existing funding settlement is insufficient to sustain the workforce required to deliver their existing provision.

The industrial dispute would therefore concern workload, health and safety, job security or working conditions, rather than the Secretary of State’s power to determine who universities may dismiss. It would nevertheless industrially target the same source which is generating job losses: the current funding model.

4.  The dispute must be industrial, not political

None of this means that UCU could simply declare a political strike against government policy. The original advice is explicit about this. A lawful dispute would need to be centred on industrial matters, such as:

●      termination of employment;

●  job security;

●      pay;

●  workloads;

●      working conditions;

●  allocation of work;

●  and related employment conditions.

It would need to avoid becoming a general campaign against the government’s political ideology or higher education policy.

The proposed dispute is therefore not:

“We oppose the government's political choices”.

It is:

“Our members are suffering concrete employment consequences from the funding framework, and the employers say those consequences cannot be resolved without government intervention. We therefore demand that the

Secretary of State exercise the statutory powers available to her to enable the dispute to be settled”.

That distinction is at the heart of the SoS trade dispute strategy.

5.  Devolved nations and the Barnett consequentials

The fact that the statutory funding powers at issue in an SoS dispute principally concern England does not mean that branches in the devolved nations have no interest in the dispute. On the contrary, there is a strong material interest in ensuring that any additional funding secured for higher education in England produces corresponding funding consequences for the devolved nations.

The Barnett formula means that changes in spending on comparable public services in England can generate changes to the block grants available to the devolved administrations. The precise amount of any consequential depends on the nature of the spending and the relevant comparability and population factors. Importantly, however, where additional funding is provided to England and this generates a consequential increase in the block grant, the devolved administration is not required automatically to spend that additional money on the equivalent service. It has discretion over how the additional resources are allocated.

It would therefore be a mistake to understand the proposed dispute as something which simply benefits English branches at the expense of branches elsewhere in Britain. The opposite strategic possibility exists. A successful campaign for additional funding in England could create additional resources for the devolved administrations. The task for branches in Scotland, Wales and the North of Ireland would then be to organise to ensure that their governments commit the resulting additional resources to higher education, rather than allowing them to be absorbed into other areas of government expenditure.