Threats to call a national strike against the government over higher education funding may prove to be more about ¡°rallying the troops¡±, with the legitimacy of any such action likely to be challenged in court.

Members of the University and College Union (UCU) voted?at its annual congress?to begin exploring options for starting an industrial dispute against the secretary of state for education, Bridget Phillipson, given she ultimately controls the levers that decide how universities are funded.

The union, which usually targets employer body the Universities and Colleges Employers Association, said it was moved to act as university finances continue to worsen, with?10,000 jobs anticipated to be lost from the sector this year alone.

But legal experts have said that the union should expect a legal challenge should it pursue the move.

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¡°I¡¯d be very surprised if this was not challenged in the courts by any affected university, as fundamentally the education secretary is not the employer,¡± said Gregor Gall, an industrial relations expert who is a visiting professor at the universities of Glasgow and Leeds.?

He said to be lawful, an industrial action ballot must involve a trade dispute focusing on conditions of employment with an employer rather than for wider political purposes, and UCU¡¯s claims may be complicated by the fact that universities get their income from many different sources.

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Toby Pochron, employment partner at law firm Freeths, said that in theory any such strike action could be protected by provisions within UK trade union legislation, which says that industrial action can occur between a union and a minister if it is not possible?for the parties to settle a dispute without intervention from the government.?

This provision, he said, is designed to allow a union to ¡°seek to influence decision-making where the actual employer cannot be considered as directly responsible¡±.

However he said it was ¡°certainly not clear cut¡± and industrial action pursued against ministers ¡°is certainly more risky and complex for unions and workers to be involved in¡±.

¡°The arguments which can be levied against this proposed action are clear and there is certainly scope for this principle to be challenged in the court,¡± Pochron said.

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In its legal case for the dispute, UCU argues that the funding crisis ¡°adversely affects¡± employment terms and conditions, ¡°thereby providing a legal basis for industrial action¡± by proving detrimental to health and safety conditions and increased workloads.?

Roger Seifert, emeritus professor of industrial relations at Wolverhampton University, argued that the motion was ¡°mainly a?propaganda measure¡± to ¡°force the government to be more open about the future of higher education funding, to rally the troops, and to remind the wider, interested, public of the strategic importance of higher education in British economic and social life¡±.?

He anticipated that the government ¡°will ignore and dismiss UCU¡¯s position, but possibly seek a deal on funding behind the scenes¡±.?

Stephen Williams, reader in employment relations at the University of Portsmouth, agreed, adding that the motion seems ¡°more about trying to increase leverage, with the threat of such potential action being used to raise awareness of the parlous state of higher education funding and thereby adding to the pressure on the government to act¡±.

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UCU said it was unable to comment at this time.

juliette.rowsell@timeshighereducation.com