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A Discussion was held in the Senate-House. Deputy Vice-Chancellor Professor Anthony Minson was presiding, with two Proctors, one Pro-Proctor, the Registrary, and thirty-three other persons present.
The following Reports were discussed:
The Second Report of the General Board, dated 7 January 2009, on Senior Academic Promotions (Reporter, p. 394).
No remarks were made on this Report.
Review of disciplinary, dismissal, and grievance procedures: A White Paper, dated 24 November 2008 (Reporter, p. 302).
Professor W. A. BROWN:
Mr Deputy Vice-Chancellor, few people would admit to finding employment relations procedures exciting and the reform of Statute U is no exception. But the issues involved are of importance for all University employees. As part of the process of bringing the procedures up-to-date, this Discussion is another stage in our consultation. Let me outline what seem to be the important issues for the small group working on this, which I have been chairing.
We start with our present set of procedures for academic staff that the University was obliged to accept as a consequence of the 1988 Education Reform Act. These were concerned with the orderly treatment of redundancy, discipline, and grievances where academics are concerned. They also made important provision for the protection of academic freedom of expression. This reflects the generally accepted view that, if British universities are to function effectively in a sometimes hostile political world, particular protections have to apply to their academic staff.
The intent of these protections is unchallenged. But the procedures that we have at Cambridge have become increasingly inadequate as the years have passed. This is partly because they have proved to be cumbersome and even unjust. It is partly because accepted standards of employment protections in Britain have become more substantial.
The University's current procedures are clumsy and potentially unfair. Anyone who has had the misfortune to be caught up in a grievance or disciplinary case will know that they can drag on interminably. About ten new cases arise each year. We currently have about 30 cases under way. On past experience, most of these will take about a year to resolve, and some will take up to five years.
Whatever the charge - of bullying, of harassment, of falsifying data, or whatever - the effects of this slowness are debilitating. It places huge strain not only on the accuser and the accused, but blights the daily conduct of the Departments and lab groups, and so on, where they work. And the delay does not deliver finely honed justice. It impedes it, because delay distorts memories, and delay breeds acrimony. We must, and we can, reform these procedures.
Irrespective of the intrinsic inadequacy of our present procedures, since 1988 there have been substantial changes in the law of the land and in the standards of due process expected of these internal procedures by the courts. Some of our procedures would probably be unsupportable if tested in the courts.
One example relates to the protections relating to redundancy. Our present procedures require Regent House to approve the selection of a part of the University that the central bodies might propose for closure. This is sensible and will be retained in our proposals. But the University's present procedure also provides for Regent House to vote on the names of those to be selected, a provision with wholly unacceptable implications for the rights of the unfortunate individuals directly or indirectly involved. This should not be retained.
Alongside increasing protections for individual human rights in Britain, since 1988 we have seen continued change in what are considered to be fair and sensible employment relations procedures. These standards have generally been refined and embodied in Codes of Practice by ACAS, the Advisory, Conciliation, and Arbitration Service which represents both trade union and employer views. As it happens, I sat on the ACAS Council myself for six years and know well the lengths to which ACAS goes to refine and to test the best practice.
There are two particular strands of thinking that have come to the fore in recent years, and which are embodied in our proposed codes. One is that there should be clear time limits on each stage in procedures. This is practical, and it is important, in order that justice is not impeded by stalling or by dilatoriness on either side.
Another new strand of good practice is that, wherever possible, there should be opportunities for independent conciliation, or mediation as we term it in the proposals. Of the over 100,000 cases brought to ACAS by aggrieved employees in Britain each year, three-quarters end up resolved to mutual satisfaction through the work of ACAS conciliators. They thereby avoid the delay, distress, expense, legalism, and unpredictability that characterizes going on to an Employment Tribunal. We seek to do the same in-house. Our University has already made productive use of internal mediation, but we want our procedures to make it available more widely as a right.
The government has vacillated in recent years as to how far employers should be legally obliged to reform internal procedures on these matters. But that is incidental to what we propose. Reforms in line with ACAS good practice would deliver better justice at Cambridge than our present Statute U.
As I observed earlier, the protection of academic freedom lies at the heart of Statute U. It will be undiminished in what is proposed. The new Statute will preserve, with wording unchanged, the present protections for University officers. Within the normal constraints of the law, they will be able to question and test received wisdom, to put forward new ideas and controversial or unpopular opinions, and do so without placing themselves at risk of losing their jobs or entitlements.
This Statute is the important protection. But it was thought helpful to elucidate it by including in a Code of Practice the principles adopted by UNESCO in 1997. This, for example, makes explicit the right of staff members to question the way in which their Department, or their University, is run. The code does not diminish the protection that continues to be offered by the Statute in any way.
On a personal note, perhaps I should say that I have a particular interest in these protections. Twenty-five years ago I was responsible for the then SSRC's research unit on industrial relations at Warwick University when it was officially charged with being biased towards trade unions. We emerged fully exonerated. But the year that the enquiry took to come to this conclusion gave me more than enough time to reflect on the need to protect academics from the consequences of publishing research that might be politically embarrassing.
We propose that fewer of these regulations should be in the form of Statute, and more in the form of Ordinances that are easier to update while still being subject to Regent House confirmation. Similar arrangements can be made for the various Codes of Practice, a part of whose function is to avoid the, to many, obscure language of Statutes.
These reforms are part of a wider process of harmonizing employment terms and conditions for all University staff, of which the single salary spine was a part. But such harmonizing must not be levelling down, and must reflect the particular and distinctive needs of particular occupational groups. Here, reflecting the focus of the 1988 legislation, it is the particular needs of academic teachers and researchers on which we focus.
In our recommendations we have endeavoured to improve the quality of justice in our internal procedures. We have endeavoured to make them more efficient in delivering that justice with minimum delay or disruption. We have sought to make them clear, by spelling out desired conduct in Codes of Practice. And we have sought to achieve more effective and humane dispute resolution by greater use of mediation.
These proposals arise from what has already been a substantial process of consultation, one that has already suggested improvements. That process continues with this Discussion.
Professor R. J. ANDERSON:
Deputy Vice-Chancellor, there are so many things wrong with this proposal that it's hard to know where to start. I will therefore illustrate my concerns with two real academic-freedom cases.
The first concerns two Professors at the University of KwaZulu-Natal in South Africa, Professors Nithaya Chetty and John van den Berg. They were sacked last year. Their formal offence was attempting to get an item of business on to the Senate agenda that the VC did not want discussed; this was presented as bringing the university into disrepute. The actual source of the offence taken by the authorities appears to have been that Professor Chetty, in addition to doing research and teaching in physics, also wrote a regular column in a local newspaper, where he criticized the university for undermining academic freedom. I declare an interest here, first as one of a large number of academics worldwide who wrote to the VC of KwaZulu-Natal asking him to reconsider, and second as someone who occasionally writes op-eds in the popular prints. Regents may care to look at my piece in the Times Higher this Thursday, and at my website.
What else might this case teach us? Well, the UNESCO code of practice that the Old Schools wish to impose on us is precisely the code used at the University of KwaZulu-Natal. Observe that, while it starts off with a proclamation of academics' rights, it continues with an even longer proclamation of academics' responsibilities. No administrator worth his salt could fail to find what he needs in there.
My second real-life case concerns a member of academic-related staff here at Cambridge. I am not going to name him, in case some future employer who googles him might conclude that he is a troublemaker. In fact, nothing could be further from the truth. This man served the University loyally for fourteen years. His offence? Last year he wrote an academic paper pointing out that a certain type of computer system, an instance of which is used in Cambridge, would need to be made a lot more usable if academics and society at large were to enjoy its full potential benefits. He showed this paper to his boss, who agreed with it, then presented it at an academic meeting here in Cambridge. At that meeting his boss's boss, who is responsible for the Cambridge system of the type in question, angrily took issue with the paper. The paper is within my own field of expertise and I can assure this House that what our employee wrote was both accurate and important. In fact, I would have been happy to be a co-author of the paper myself.
However the effect on our employee was dire. The management of his institution excluded him socially, moved him to less challenging work, and is making him redundant from the end of the month.
Suppose this had happened to a member of research staff. Suppose for example that my Head of Department were to take issue with something one of my postdocs wrote and refused to authorize an application for a new research grant to pay him. That would be considered utterly disgraceful. Yet our 'human resources' people seem to consider it perfectly acceptable for librarians, curators, and computer officers to be treated in this way. And it is now proposed that, in the interests of treating all staff the same, the protections enjoyed by academic and research staff should be levelled down to those currently enjoyed by our librarians, curators, and computer officers.
At present, if the University wanted to sack me for criticizing the Old Schools in the press - as I've done in the past - then presumably they would bring a case based on some administrative matter. We have so many rules that no-one can pay attention to them all and still get their work done. But there's a backstop: academics have the right of appeal to the Septemviri, seven senior academics who would take a view of the alleged offence from the viewpoint of our culture rather than the Old Schools' culture.
Now the proposals before us would remove academics' right of appeal to the Septemviri. Our Vice-Chancellor would still be able to appeal to them, should we ever try to sack her, but ordinary Professors will have no such privilege any more. Instead of the Septemviri, we'll face a kangaroo court of three people appointed by our Head of Department - as happened to the Cambridge colleague whose sad case I just described.
Deputy Vice-Chancellor, the Regent House consists of some thirteen hundred academics plus about three thousand research, academic-related, and administrative staff. At the level of self-interest, none of us should support this measure. Every one of us loses rights and gets nothing in return. Academics lose rights of appeal, while everyone else loses employment rights. At the level of principle, the Regent House must not support this measure. It will downgrade our guarantee of academic freedom from a Statute to a Code of Practice. And although some of the wording of Statute U will be retained in another Statute, that wording will in future be interpreted by reference to a Code of Practice that is already discredited, and can be changed by Authority at any time.
What I propose instead is that we level up rather than levelling down. We must bring academic-related staff within the protection of Statute U and give them the right of appeal to the Septemviri. Had our Cambridge colleague had this right, it is unthinkable that he would now be facing redundancy. I cannot see how granting freedom of speech to librarians, computer officers, and museum curators will damage the University. But removing it from researchers and scholars - that certainly will.
Deputy Vice-Chancellor, Cambridge has made a greater contribution to human freedom and prosperity than any other university precisely because we have for centuries been the greatest iconoclasts. Just as fire rejuvenates the forest by burning away the rubbish and clearing space for new things to grow, so we have done the same for human culture. The ground we cleared made us the cradle of evangelical Christianity in the sixteenth and seventeenth centuries, of science in the seventeenth and eighteenth, of atheism in the nineteenth, and of all sorts of new, cool stuff since - including the emerging sciences of life and information. In the year in which we celebrate eight hundred years of creative mayhem, should we curtail the very academic freedom that we've taken centuries to invent and nurture?
Professor D. M. THOMPSON:
Mr Deputy Vice-Chancellor, by the time any of these changes are enacted I shall have retired, so I think that gives me a dispassionate vantage point from which to speak. Broadly speaking I support the principles which are adduced in favour of the proposed changes in the currently complex University provisions for disciplinary, dismissal, and grievance procedures. I do so principally because I experienced the inadequacy of the existing procedures, when I was invited by what is now the Human Resources Division two or three years ago to hear the grievance of a member of staff in another Faculty. It was made clear to me at the outset that it would be necessary to hear this case under the procedures laid down by the latest parliamentary legislation, because the available procedures in the University would not stand up in court in the event of a disputed outcome. This is plainly unsatisfactory. Moreover, given the rate at which employment legislation has been changing since 1988 (as Professor Brown has indicated), it is important that the University's own procedures are enabled to comply with the current state of the law.
However, I have one major reservation about the way in which the current proposals are drafted, and that relates to the Codes of Practice set out in Annex G. As I read Annex F the principal responsibility for promulgating these Codes of Practice lies with the Council. Now as someone who served on the Council for six years, I have a general presumption of trust in its competence. Nevertheless my experience before, during, and since that time showed me that, with the best will in the world, it did not always get things right, or see all the possible consequences of its own (well-intended) actions. Not infrequently in controversial matters, which were the subject of a Discussion, alternative wordings were suggested that were significant improvements to the proposals in question. I have also had sufficient experience of drafting documents in my time to know that even a small group that knows one another's minds very well can get so set along a particular line of thought that alternatives fail to occur to it. For these reasons I see no good reason why these Codes of Practice should not be Ordinances. There would be no significant delay in approving them if they were well drafted, and if they were not, the wider exposure would be a valuable opportunity for change. Not only that, the openness of this procedure would actually help the Council's relationship with the Regent House, whereas the opposite could well damage it. That is entirely inappropriate when the matters in question are so sensitive and also so important for all concerned. I urge the Council and the General Board to change their minds on this crucial point.
Mr R. J. DOWLING:
Deputy Vice-Chancellor, let me start by declaring an interest. I am a member of this University's staff who will be adversely affected should the proposals in this white paper come to fruition.
Now this is a white paper, designed 'to consult widely'. A cynic might regard it as a gentle test to see what the HR Committee can get away with, and I am such a cynic. So I shall follow the structure of the leading summary to comment on this white paper.
We are told, up front in paragraph 2 what the aims are for this project. Three requirements are laid down which it claims are required to match employment law. Note how paragraph 2(i) also requires that 'similar procedures apply to all members of staff of the University'. We are told that there is a desire to make the Statutes and Ordinances reflect ACAS guidelines also. Finally it wants to make the University's procedures fair.
White papers exist for feedback; here is some of mine: quote Statute or case law to support any claims that we are being driven by external legal requirements. As it stands, the basic premises of this entire argument are missing.
But let's imagine that those are the external forces we must bow to. Note that academic freedom is mentioned nowhere in those requirements. And yet this white paper seeks to remove academic freedom from a whole group of staff who currently enjoy it. There's no reason to include changes to the fundamental freedoms of an academic institution in the three aims of the white paper but clearly the HR Committee thought they might just slip it in. Perhaps nobody would notice.
Here's some more feedback: do not modify the nature or extent of the University's academic freedom as you update the University's regulations to comply with English employment law.
Paragraph 3 carries the real punchline of the paper. From a Statute dedicated to academic freedom that requires a Grace of Regent House and the permission of Her Majesty in Privy Council to change, we are reduced to some 'essential safeguards' and a 'code of practice' requiring nothing more than a vote of Council. How is that required by English employment law? And what are these 'essential safeguards'? Whatever they are, the white paper tells us that they won't be available to a wide range of staff who currently enjoy them. So much for 'similar procedures for all staff'.
My next feedback to the white paper is this: if you need to make things uniform, level up, not down, and make things genuinely level.
Students of politics will know that Parliament recently saw off the 'Legislative and Regulatory Reform Bill' otherwise known as the 'Abolition of Parliament Bill'. This would have permitted government to change the laws without consulting Parliament, much less securing their permission. Welcome to the University's equivalent: a 'code of practice issued by Council', no doubt actually written by an officer for the HR Committee.
My feedback to the white paper on this point is simple: how dare you treat the Regent House with such contempt? Relegate procedures to Ordinance if you must, but never to a mere 'code of conduct'.
Paragraph 4 approaches dishonesty in its leading sentence. The Council and the General Board apparently believe that these proposals are the way forward. Actually, Council wasn't asked. Council was asked whether the white paper should be published for consultation, and it said it should. If Council believed something there would be signatures at the bottom of the report, though perhaps not as many as the HR Committee would like.
We are told at the end of paragraph 4 that the Council and General Board will move on to consider unestablished academic staff, academic-related staff, and assistant staff. This is particularly curious in that the proposals in the white paper specifically remove rights from unestablished academic and academic-related staff. Perhaps Council and the General Board want to come round for a second pass to mop up any survivors. Unestablished academic staff not blessed by entry in Schedule J and academic-related staff lose out in this white paper's proposals with nothing offered in recompense. To say they will be treated later is incomplete and inaccurate. They are being treated here and not well.
Let me give another piece of feedback for this white paper: either leave these categories of staff out of it, or do them properly.
The summary sparkles for a brief moment in its fifth and final paragraph. The white paper sets out detailed proposals because it believes 'the University will wish to see such detail'. Damn straight the University will, and the detail horrifies.
If we look at the detail we see that the paper has, as one of its main pillars, the removal of current rights from all staff who do not meet the new, tight definition of academic staff.
The white paper lays out a new procedure to make it far easier for the University to declare redundant staff lying outside the tight definition of academic. Does anybody really believe that they would be implementing this change unless they planned to use it? When I applied for my first mortgage in 1993 the building society balanced my relatively low salary against the stability of my employment; it was a significant factor in my favour. so in this time of credit crunch the HR Committee wishes to make it harder still to get a mortgage. That's a fine way to thank the University's staff in our octocentenary year: a brassy little pin and a kick in the teeth.
It gets worse. In the responses to the green paper the white paper is explicit. The Council and General Board, it claims, do not consider that the control of the Regent House 'should extend (as currently) to University officers generally, or should extend to unestablished academic staff'. One might query the supposed logic that leads from compliance with legal requirements and a desire for uniformity to a diminution of Regent House's authority over the structure of the University.
And that brings us to the crux of the matter. This white paper is deeply flawed in its logic. Some possibly genuine requirements are laid out at the start and then a shopping list of changes to the University's procedures and to Regent House's rights are wheeled out with no connection to the original aims.
We are given the aim of uniformity but we get just a different set of variations. We are given the aim of clarity and we get a code of practice rather than an Ordinance. These do not tie up. The University deserves better than the bogus logic of juxtaposition instead of implication.
This white paper's premises are missing, its logic is faulty, and its proposals are bad. The most important piece of feedback it can get is 'throw it away and start again'.
Professor A. W. F. EDWARDS:
Mr Deputy Vice-Chancellor, what is a White Paper? It does not exist in Statute A, 'The Chancellor and the Government of the University', nor in the corresponding Chapter I of the Ordinances. It therefore has no place in the formal conduct of the business of the University. Yet this one 'sets out fully detailed proposals' on what is clearly a matter of great importance: no-one has to tell me what it is like to receive a letter from the General Board making one redundant on managerial grounds.
If the Council and the General Board wish to bring an important matter to the attention of the Regent House the method allowed for in the Statutes is by Report, and if they wish to bring forward 'fully detailed proposals' they must attach them as recommendations, and then those members of the reporting body who agree with the Report must sign it in accordance with the requirement of Statute K,17, and, by a century-old convention, those members who do not agree may attach a note of dissent.
I am myself no longer a member of the Regent House, but I urge those who are to ask the Council to resubmit this paper in the customary form of a Report with recommendations, signed by those members of the Council and the General Board who agree with it. The device of a White Paper looks very much like an attempt to deny the Regent House its right at the appropriate moment to reject or amend a proposal, which is of course intrinsic in its right to reject or amend a proposed Statute to implement that proposal. It is asking for trouble to let opposition fume in a state of democratic impotence until the publication of the Report proposing the actual Statute changes, as if the Regent House were only a legislature.
Clearly this paper started off as a Report in the customary way and then someone had the bright idea of making it unsignable, undissentable, and unvotable, by turning it into a vehicle for which there are no rules of the road. The give-away is to be found in line four, which refers to 'a further Report'. Note also that Annex A says that the then Personnel Committee instructed their working group to recommend proposals 'to be brought forward as a Report'.
On internal evidence the paper seems to come from the Council and the General Board, but it does not say so. It is dated 24 November, on which date the Pocket Diary says the Council met. The minutes record that the Council did indeed approve it for publication then, though 'Some members expressed concern at the nature of the proposals' and suggested they should be dropped. They also record that an informal meeting of members of the Council and the General Board was held on 22 October, though since a member present is minuted as having given his opinion that the note of the meeting 'did not fully record the remarks he and others had made' there seems little point in asking for its publication.
If this lament sounds wearily familiar it is because we have been here before. Seven years ago, towards the end of Sir Alec Broers's Vice-Chancellorship, the Reporter of 6 February 2002 carried a Notice on 'University Governance'. It too was unsigned and carried definite proposals (but at least it was a Notice stated to have been published by the Council). It was not at first put down for Discussion, so I addressed a circular to every member of the Council and General Board (which shared authority for the proposals with the Council) complaining about the procedure in much the same words as I am using today, and asking whether, had the Notice been a Report, they would have signed it. One said yes, one said no, and most of the rest, courteously replying to my request, said neither, preferring to defend the Council's so-called 'consultation', which is best remembered for the 'roadshow' in which Professor Grant and Dr Johnson toured the University touting the proposals and the Vice-Chancellor wrote an article in the Guardian extolling them, in both cases using extreme language about the opposition which I forbear to quote. Eventually some members of the Regent House requested the non-Discussion be put down as a topic for Discussion, with interesting results (Reporter, 2001-02, p. 740).
Well, we all remember what the Regent House did to those proposals.
One tires of being endlessly critical, so let me finish with a short description of best practice for the benefit of those who have not had the experience of seeing the system working properly. My qualification for offering this is having twice been a member of the Council and three times a member of the General Board (once elected and twice appointed by the Council). For most of my time on the General Board I was the Chairman of its General Purposes Committee, now I believe the Education Committee, responsible for seeing through the Regent House all legislation originating with the Board. I do not recall hearing anyone voice procedural criticism during my tenure.
When a major, complex, and potentially controversial measure needs lengthy consideration, the Council, persuaded of the need, invites the responsible body to prepare a Report. It is best if the body is an existing Syndicate or Board, but if no relevant one exists there is the option of setting up an ad hoc Syndicate such as the former Statutes and Ordinances Revision Syndicate, of which I was a member. Syndicates, of course, are committees of the Regent House and not of the Council, but the Council propose their terms of reference and membership, and neither of these has been challenged in living memory. Matters not justifying a Syndicate may be dealt with by an ad hoc Committee appointed by the Council, but publicly so.
The important point about this system is that the Syndicate or Committee's Report is signed by those who agree with it, published over their names, and put up for Discussion, which therefore takes place before the Council have committed themselves to a particular view. Contrary views to the Syndicate's can be calmly taken into account, and the Council are then responsible for putting the final proposals to the Regent House.
It is also pertinent to recall the Council's undertaking (Statutes and Ordinances, p. 114) that 'In carrying out their functions as the principal executive and policy-making body of the University the Council will consult the Regent House on questions of policy which in the Council's judgement are likely to prove controversial. They will do this by submitting a Grace to the Regent House for the approval of a provisional decision or statement of intention'.
The debased system, at which I will continue to rail, commits the Council and the General Board, acting anonymously and probably not unanimously, to particular proposals which their majorities then feel obliged to defend through thick and thin even though they may have had little part in their preparation. The opponents of the proposals are then joined by the opponents of the procedure and the measure is lost. It is no way to conduct the business of the University.
As to the 'fully detailed proposals' set out in the paper before us, I shall await their presentation in a proper Report, and be influenced by the names of those who sign it and those who do not.
Dr M. R. O'DONOHOE:
Deputy Vice-Chancellor, my concerns about this white paper are confined to the matter of redundancy.
I have worked in this University for more than 30 years, and I delivered lectures for Computer Science for 25 years. My post has never been one in Schedule J, nor should it be, but this has not mattered, until now.
The Paper begins by setting out aims. Aim (i) includes the phrase 'to ensure that similar procedures apply to all members of staff of the University' - very laudable and in tune with the current harmonization exercise. However this aim does not survive for very long. Barely a dozen lines later we discover the second main proposal which includes:
to retain the principle that University officers in Schedule J (colloquially referred to as University Teaching Officers) shall not be made redundant without a redundancy situation having been approved by the University - but the current similar protection for other University officers will be removed.
The juxtaposition of the aim and the proposal is oxymoronic. How can it serve harmonization to create a separation, between groups of University officers, that did not exist before?
Much of this Paper, particularly Annex B, is devoted to explaining this non-aim. We learn that, with a handful of exceptions, 'Academic staff' is synonymous with 'University officer'. In Statutes and Ordinances it has not been necessary to distinguish subgroups of these by name. Schedule J exists to describe those offices whose holders are entitled to sabbatical leave, by virtue of their role. Appearance in Schedule J is not a measure of worth to the University because that is explicitly what the grading structure is for; we often hear the mantra 'equal pay for work of equal value'. To create an anomaly of this kind in Statutes and Ordinances would be the proverbial 'thin end of the wedge' that could lead to further splintering of the academic staff and weaken the Regent House.
We are also asked to accept the relegation of many procedures to Codes of Practice which may be changed by the Council without reference to the Regent House. Good legislation is timeless and should not rely on the good will of current administrators. The current proposal would make bad legislation because it could be used, say in twenty years time under a different regime, to close down a service department or to make redundant a whole class of academic posts without reference to the Regent House.
The governing body of this University is the Regent House and not the Council. These proposals significantly change the balance of power in a way that should be of serious concern to members of this house. The proposed Codes of Practice should, in my view, be Ordinances and subject to Regent House scrutiny.
Mr D. J. GOODE:
Mr Deputy Vice-Chancellor, I speak as President of the Cambridge University and College Union, UCU.
And I could speak at length about the inequity - and the iniquity - of this review's proposals. I could speak of how they would make the disciplinary, dismissal, and grievance procedures of the University much easier for the University administration to apply, and much more difficult for officers of the University to defend. I could speak of how they would move much of the protection currently afforded to University officers not only out of Statutes and into Ordinances - thereby removing the need for approval of both the Regent House and the Privy Council - but in many cases out of Ordinances and into mutable 'Codes of Practice' - thereby removing the need to seek approval of the Regent House altogether - and putting unwarranted power into the hands of professional administrators who would be no longer carrying out the will of the Regents of this University but the will of... Well, that's a good question, isn't it. Whose will, exactly?
I could speak of how they would drastically reduce academic freedom and protection for everyone, but single out offices in Schedule J as being worthy of having a little more of a lot less when it comes to removal from office for redundancy. 'All officers are equal, but some officers are more equal than others', to misquote Napoleon (Napoleon the pig, that is, not the emperor).
But, though it might seem that I have already started going on at length, I have not. I am going to make one point only, which is that this review's proposals are nothing more or less than an open attack on academic freedom. They are an attempt to divide and rule by making two classes of officer from one when it comes to removal for redundancy. They are a significant worsening of all University officers' terms and conditions, but none more so than for the holders of offices not in Schedule J.
The only people to benefit from these proposals will be the people making them, when they decide that our services are no longer required and we find it will be much easier for them to get rid of us.
Deputy Vice-Chancellor, the proposals contained in this review must be defeated, or we all lose. It really is as simple as that.
Professor G. R. EVANS (read by Revd Dr M. A. GUITE):
Mr Deputy Vice-Chancellor, Statute U should be clear, consistent, and applicable as far as possible to all employees of the University. This document does not meet those standards. The objective of ensuring that similar procedures apply to all members of staff of the University should mean upgrading procedural protections across the board, not reducing them for some employees. To do that is incompatible with the objective as stated. It downgrades the rights of academic-related staff and does nothing even by implication to improve the position for assistant staff. There are unacceptable losses of existing rights even for academic staff, for example, the change in medical committee membership. The right for the member of staff concerned to choose one member is an important protection. It has disappeared under the proposed D, IA, 3. And this bit seems to have been drafted without weighing dismissal for medical reasons against Disability Discrimination Act provisions. Disability is not discussed at all. How is that bringing the Statutes up to date with changes in employment law? So the thing is confused and potentially damaging.
This document is also far too long to be of practical use. It is going to be impossible for line managers to internalize it so as to avoid making procedural mistakes in their handling of matters arising under the Statute or its subordinate legislation, which promises to become a minefield of uncertainty and local variation. It will make a bad situation worse in that respect, for how many of those entrusted with implementing internal employment procedures really know what they are doing even now? There is no provision for training of persons operating the procedures or means of ensuring accountability for their mistakes. This is going to lead to unnecessary over-complication and prolongation of disputes, to grievances raised so as to counter disciplinary processes, and to a rise in ET claims. Isn't the usual pattern that line managers make a mess of it and when the employee goes to an employment tribunal in indignation they hand the whole thing over to Personnel/Human Resources and the expensive mess runs all the way to the door of the tribunal before being settled expensively and possibly with a gagging clause? Surely the aim should be to prevent that sort of thing?
Then there is the constitutional muddle, the proposed affront to the control of the Regent House as legislative body. The division of what should be in Statutes, what should be in Ordinances, and what should possibly be left to guidelines or Codes of Practice has not been thought through. (And surely 'Regulations' should be 'Ordinances' in the draft?) It cannot be acceptable for any authority but the Regent House to approve substantive changes to procedural requirements. Under these proposals the Regent House would lose the general right to object to changes made to subordinate legislation framed under an Ordinance and directly affecting the rights of its members as officers as well as employees. The act of delegation (A, III, 4) has to be to a body and K, 9 now allows delegation to a person. Too much is left to the discretion of individual line managers. This is not an area where subsidiarity is appropriate. It would be incompatible with the overriding objective of creating a system applicable to all employees. What if a dispute arises involving employees from different Schools or Faculties who are working to different conceptions of what constitutes doing their jobs satisfactorily?
There are other very important constitutional considerations. It should be evident to any person exercising decision making powers what are the limits of his or her powers and the fetters on the exercise of his or her discretion. Will it be? It cannot possibly be acceptable to allow a line manager to determine whether a subordinate is doing his or her job properly. In the case of UTOs the existing Statute D lays down principles which respect the professional integrity and autonomy of the Officer. There are going to be conflicts of interpretation. I say I have fulfilled the duties of my office, You say I have not. The power of delegation to a person now granted under Statute K, 9 seems to mean that an individual could define satisfactory performance in office, create a departmental procedure, and carry through a dismissal under that procedure without adequate protection for the member of staff so targeted. How is that going to be fair?
Importantly, and relevant to this point, there is a confusion throughout this document in the use of the terms 'officer' and 'office'. A University office is distinct from an employment relationship. This is acknowledged in proposed D, 1A, 11, in a formulation which allows a 'person or body' making a decision to remove from office to decide whether or not to terminate the employment.
What of public policy matters? Grievances are still understood as being personal complaints against other employees or officers. This is now out of date and inappropriate. There is a nationally recognized need to allow the raising of grievances which include maladministration and mismanagement and other 'systemic' problems, for example the causes for concern which may now be reported to the QAA by staff of HEIs, who must be able to do so without fear of reprisal. This expanding area (OIA and RCUK are both tackling the same issue) urgently needs to be accommodated within any new statutory provision in Cambridge.
The mediation option should be built in for all procedures not just grievances. The ACAS procedure is not wholly satisfactory and should not be adopted as is proposed. There is a great deal going on in this area in HEIs.1
I save the worst till last. Academic freedom. The ERA 1988 protects the freedom within the law of all University officers alike and in terms set out in the ERA at s. 202 and also forming part of Statute U. This cannot be restricted or diminished for any class of officer. Is this provision, designed to meet the specific danger envisaged by Parliament in the late 1980s that the removal of academic tenure would lead to dismissals of those who asked awkward questions, in need of bringing up to date? Yes, by ensuring the widest possible interpretation of the types of speech within the law and the employees protected. But that does not mean spelling it out, because in fact that limits the scope of the protection. Again, the proposed code of practice is far too long. It contains specifications inappropriate to Cambridge and bound to expose the University to disputes and possible litigation.
Moreover, the proposed code of practice contradicts existing provisions of the Statutes and Ordinances, and provisions elsewhere in the proposed new Statute U. At (3) and (5), the promise of 'freedom in carrying out research etc.' conflicts with the IP regulations and also with the existence of a research policy framework within which individual academics may be required to direct their research efforts as a line manager instructs. There is confusing overlap between these sections and this is likely to lead to disputes about interpretation. At (4), the 'right to teach without any interference' is qualified in ways which beg many questions about the powers of a line manager to determine whether an employee is doing his or her job properly. (7) The rights set out in this wordy paragraph belong to all members of the Regent House. Is it seriously anticipated that academic-related staff will be denied some or all of these rights? (9) Is the Office of External Affairs and Communications going to be required to respect the 'honest search for truth' and eschew spin in future? It now appears to have 35 or more staff, some of whom appear to be academic-related, but these will apparently not be required to respect this code. (10)(g) 'research is conducted according to the law'. Which law? US law? Sharia?
Back to the drawing board, please. And if this is an example of the quality of the work which will be put in hand when eventually the Statutes and Ordinances get their comprehensive revision, heaven help the University of Cambridge. Short, clear, principled. Please.
1 See http://www.staffs.ac.uk/idr/toolkit/.
Dr N. A. DODGSON:
Deputy Vice Chancellor, Statutes and Ordinances define how we run our self-governing University. They are most vital when things go wrong. There is nothing that can go much more wrong than having to discipline, dismiss, or make redundant a senior member of the University. It is therefore vital that these procedures, and the situations in which they can be invoked, are enshrined in Statutes and Ordinances.
Academic staff are an awkward bunch: often difficult, sometimes arrogant, and always opinionated; but they are also strongly motivated and hard-working. Administrative staff have the difficult job of freeing these awkward people to work hard on what motivates them: research and teaching. That freedom must be combined with academic freedom, which needs to be without let or hindrance. The proposal in the white paper provides mechanisms by which this freedom can be undermined and, therefore, needs to be reworked before a formal Report is presented.
Mr N. M. MACLAREN:
Deputy Vice-Chancellor, I am not one who denies that this area needs attention. This proposal does seem to improve the mechanisms for removing ineffective staff, and handling the discipline of and most grievances by relatively junior staff. However, let us consider its effects on academic freedom, free speech, and related areas, and on somewhat more senior staff.
I think that most people will agree that the duties of academic-related officers include giving honest and accurate information and advice to the University, its staff, and members, and raising relevant concerns about projects and other activities. Obviously, this also applies to lecturers and other members of staff when performing academic-related roles.
Let us consider speaking out about a likely breach of University regulations or a predictable, serious, mistake, when raising the issue more quietly has not been effective. This point was raised in several of the responses to the green paper; I also hope that we have not forgotten CAPSA so soon! The white paper, paragraph 8, bullet point 3, states that no protection for 'whistle-blowing' is needed because it is already protected under the Public Interest Disclosure Act. But is that true?
There are six categories of 'protected disclosure' in the Public Interest Disclosure Act: about criminal offences, failure to comply with legal obligations, miscarriages of justice, health or safety, damage to the environment, and deliberately concealing any of those. None of those categories would provide any protection in cases of mere breaches of University Regulations or predicting fiascos like CAPSA. Currently, officers get some protection from Statute U, but other staff get nothing.
The white paper seems to have been written under the assumption that very senior people will act dispassionately, neutrally, and solely in the interests of justice, even when implicitly judging their own actions. Unfortunately, those people are merely human, with all of the faults of ordinary humans, and are not immune to misbehaviour.
The proposed regulations, Annex F, paragraph 8(d), bullet point 1, say that refusal to comply with a reasonable request from a person in authority is a reason for discipline or removal from office. But what if the member of staff has been told to remain silent? Is that a reasonable request? Many people in authority seem to think so, in which case speaking out is a reason for disciplinary action. No doubt the Council will respond that such an instruction would not be regarded as reasonable, but where is that stated?
Similarly, there is nothing that requires a 'reasonable request' to be in writing, so it will be the word of the member of staff against that of the 'person in authority', and a decision on what is 'reasonable'. Now, that decision is taken by the 'responsible person', who is also responsible for delegating powers and ensuring the good running of the institution, so a finding for the member of staff is equivalent of accusing himself or herself for failing in duty of care!
Now, consider the appeal process, in those cases where speaking out has offended much of the Council or General Board. Will they be truly fair in selecting the panel, or choose people who are likely to support the establishment? The member of staff has no right to challenge the membership of the panel or the appeal procedure.
The code of practice for disciplinary actions, paragraphs 5 and 6, say that the officer may be accompanied by a single, constrained, identified companion - but the 'responsible person' is not constrained at all. Paragraph 8 says that the first time that the officer need be shown the evidence is at the meeting, and is expected to question witnesses and respond on the spot. That is very one-sided.
The reasons for disciplinary action include none of issuing an unreasonable order, refusing to put it in writing, or failing to follow the procedures in these Codes of Practice. Indeed, if those are done in the context of disciplinary action, paragraphs 35 and 36 prevent that being raised even as a grievance. After a traumatic ordeal, the member of staff would probably win on appeal, but this white paper proposes no disincentive to abuse of power.
Now let us look at the green paper consultation. As I said, several responses raised the issue of freedom of speech. What does that say in its summary? It states that four responses to question (c) 'Is there anything else other than academic freedom that should be given statutory force?' were 'Yes' and six were 'No'. Let me quote from five of the responses classified as 'No':
The Faculty of Law said 'It was agreed that (in addition to academic freedom) freedom of speech should be given statutory force because of the University's legal obligation in this regard.'
I said 'Yes, unquestionably', and elaborated later.
Dr Holmes said 'Yes, I believe that all three principles currently enumerated in U, I, 1 need to be set out in Statutes. However, this is far from sufficient', and then elaborated.
Dr Cowley said 'I'd like to see 'whistle-blowing' added (preferably with the University's code updated so that it is more user-friendly and likely to be used)'.
The UCU repeated Dr Holmes's words, with additions.
The Faculty of English was incorrectly classified as saying 'yes'.
Those responses were eight to two in favour of statutory protection for freedom of speech, which was described as six to four in favour of no change in the summary. That is scarcely in accordance with the proposed code of practice for academic freedom, paragraph 12(c).
Moving on to the change in conditions for academic-related staff, some of us teach, do research, and are experts in our fields at the level of many Schedule J staff, as Professor Anderson has said. The white paper states that there is a necessity for academic freedom for Schedule J staff that does not apply to academic-related staff; the Pro-Vice-Chancellor was twice asked why, but did not answer either time.
Let me explain how the new procedure can be used to get rid of an inconvenient academic-related officer; in the past, I have seen this done to people without tenure. The responsible person authorizes a restructuring of responsibilities, creating new roles, and abolishing old ones. This does not require any change in activities, as it merely involves moving tasks between roles, but dropping a few tasks can make it easier. Quite by coincidence, the role of the inconvenient officer has ceased to exist, who can therefore be declared to be redundant. Is that why rigid role descriptions were included in PD33s, against our will?
This process is very similar to the way that some Chairs and Lectureships in minority subjects have been abolished. Professor Anderson has described how this can be done for research staff. Those reasons for change may have been good, but my point is that a process can be abused as well as used. This white paper proposes to remove a very important safeguard from academic-related staff, that of getting the Regent House's approval for the redundancy situation.
Lastly, in Annex B, the white paper proposes to discontinue the use of the term 'academic staff' as it is essentially synonymous with 'university officer'. But why does Annex G then refer to 'those in academic positions'?
Dr N. HOLMES (read by Dr S. J. COWLEY):
Mr Deputy Vice-Chancellor, I have spoken in this forum on several occasions over the past ten years, but I doubt that any has been as important as this. I believe that if these proposals are adopted, the arrangements for the effective protection of the academic freedom and of the independence of thought and action of the University's academic staff will be fatally weakened. This will truly be a bitter pill to leave our successors as the legacy of our octocentenary year. It is my submission that the case for repealing the present Statute U has not been made by the Council and General Board (hereafter the Central Bodies). The white paper says, in paragraph 2, that they have three aims in advancing these proposals. Let us examine these to see if they form a cogent case for reform.
First, to reflect modern employment law and practice and to ensure similar procedures apply to all members of staff. I assert that there is nothing in current UK law that requires us to alter the procedures for discipline, dismissal, and redundancy in Statute U. There may be some aspects of our grievance procedures which require amendment, though the absolute necessity for this is unclear. This issue appears to me a critical one, as some people I have spoken to seem to be acting under the misunderstanding that these proposals are necessary to make our procedures comply with the law. If this were so, then we should indeed repeal Statute U in its entirety, but it is not. As to the latter wish, to ensure that similar procedures apply to all members of staff, it sounds rather laudable but in reality it is not so in most other aspects of employment by the University. Some staff are Regents, some not. Some staff have short or no probationary periods on appointment, some five years. Some have defined working hours, hourly pay, and overtime. Perhaps this desire to subject all staff to similar procedures will, in future, manifest itself in the requirement for members of academic staff to ask permission from their Head of Department before deciding to work at home or in College for the day; after all, not all staff have the privilege of determining where they can best work tomorrow, so why should some - you may laugh but it already happens at some other UK HEIs - and if these proposals are enacted you can be disciplined for failing to follow any rules, policies or procedures including departmental ones.
The second set of reasons given is to provide a better balance between Statutes, Regulations, and Codes of Practice. Whether the balance proposed is better or worse is subjective. I happen to think that it is worse. In my view, Statutes and Regulations are things that are compulsory; they should be appropriately made by Regent House. Codes of Practice should be advisory. Certainly in the fields of safety legislation, where I have some experience during my University employment, Codes of Practice are not compulsory, though if complied with, they may provide some defence against allegations that you have breached the law. One of the unsatisfactory aspects of the present proposals is that they disguise Regulations as Codes of Practice, for the so-called Codes of Practice in this paper have teeth and any officer who breaches them can be disciplined, even dismissed.
Finally, the Central Bodies offer the argument that we should enact these proposals to ensure that procedures are proportionate and fair. These also sound unarguable as principles but beg the questions 'Are our current procedures not proportionate and fair?' and 'Are the proposed new procedures proportionate and fair?' What is proportionate for procedures which are designed to regulate how a member of academic staff can be dismissed from their office? I notice that, unlike the green paper which preceded it, 'efficiency' is not advanced as a primary reason for the proposed changes. However, it is my belief that it lies at the heart of these proposals. I believe that the primary purpose of the proposed changes is to empower Heads of Departments ('the responsible person' in the Paper). When they are able to act as prosecutor, jury, and judge, this will hand them a great advantage in their dealings with the University officers under their aegis. It will also, undeniably, make it easier for the University to dismiss University officers.
The most important point I want to make today is that academic freedom cannot be defended in practice by well-meaning statements about people's rights to it, even in Statutes, and with a Code of Practice which fleshes out what is meant by this term. What is needed are robust and rigorous procedures which require the dismissal of those enjoying this academic freedom to be justified to an impartial and competent tribunal. Real world events have proved this over and over again. In Universities around the world which have similar 'guarantees' of academic freedom, academics have been forced out for publishing criticisms of the University or its major sponsors. Unsurprisingly, not one was dismissed for exercising their academic freedom. Where such decisions do not have to be justified before an independent tribunal, it will generally be possible for a determined authority to find some grounds to justify the removal of almost any member of academic staff. In making these remarks, I need to stress that they have no specific application to any persons currently in authority in the University but I remind you of a quotation from the former President of the United States, Lyndon Johnson: 'You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harm it would cause if improperly administered.'
I consider that the current provisions in Statute U, while cumbersome, are necessary. The Central Bodies may be correct in their assertion that these procedures do not 'reflect modern employment ... practice'. However, the University is not a commercial enterprise but an institution in which upholding academic freedom and independence of thought and speech is a cardinal principle. While it might be common practice among UK employers for individual managers to hire and fire their section staff, we continue to rely on Appointments Committees for University offices; surely the power to dismiss staff is even greater than appointing them.
Unfortunately, exercising academic freedom does in practice, and not only rarely, lead to disagreements, sometimes very strong ones, between colleagues. Academia is famous for such disputes and for controversies (we're having some today).
As explained above, academic staff in exercising their academic freedom can risk conflict with colleagues, including Heads of Institution, or embarrassing the University. It is important therefore that they can defend their actions before a tribunal which is both impartial and capable of understanding the issues, including issues of scholarship. The proposals in this white paper require the maintenance of the University Tribunal in any case. I cannot agree that a single individual can provide the necessary rigorous test of any charges or the impartiality (the provision for replacement not withstanding). Nor am I at all convinced by the three-person appeal panel. It is an old adage that all authority is reluctant to admit any mistake; since the current procedure for dismissal of unestablished staff is similar to that now proposed for academic staff, we might ask how many such appeals have been held and how many succeeded. Do I have any takers for a guess of zero successful appeals against dismissal? Once decisions are made, getting them reversed may not be impossible but it is very hard; having a fair hearing at first instance is crucial.
My own views clearly differ radically from those of the Central Bodies and I think we ought to consider extending Statute U's protection to all members of staff engaged in research and teaching, at least for dismissal proceedings. I do accept that practical considerations mean that staff whose salaries are paid from external funds need a less rigorous redundancy procedure. Furthermore, I cannot see the justification for dividing academic-related staff from academic staff; there appears to be an implicit assumption that officers not covered by Schedule J do not need their academic freedom protecting; this is certainly not the case for all such staff; many, such as curators, librarians, and computer officers, make significant academic contributions.
At the time that the Education Reform Act 1988 was debated in Parliament and when the Commissioners were negotiating the details of Statute U, it was considered important that the arrangements for dismissal of members of academic staff, whether for reasons of redundancy or good cause, were such as to ensure that the principles of academic freedom, fairness, and justice were observed. I see no convincing argument these needs are any less today. The possible counter argument that the statutory rights of all employees are now sufficient is, in my view, wrong. Of course you can take your case for unfair dismissal to an Employment Tribunal, but even if you win the remedy is likely to be a few thousand pounds in compensation; even more likely is an out-of-court settlement.
Finally, I should like to say something about the relationship between academics and the University. I may be deluded, but I genuinely believe that I am a member of a community of scholars. Being an academic at Cambridge is a great privilege, but academic freedom also brings burdens. Each academic must define their own research problems, finding ones of sufficient importance to the academic community but also ones which that individual can usefully progress. This self-reliance does engender an independence which leads me to feel less like a subordinate responsible to a single manager than a colleague with joint responsibilities for the great enterprise. Perhaps this is hubris but I regret these proposals will change the relationship for the worse.
In my view there is no cogent argument for a radical reform of Statute U. I do believe that there is a strong reason to retain statutory provision for arrangements which effectively preserve the freedom and independence of academic staff. I urge the Central Bodies to abandon the abolition of Statute U and focus on improving it.
Dr S. J. COWLEY:
Deputy Vice-Chancellor, like many speakers today I need to declare an interest in that a change to Statute U would affect my conditions of employment (and also those of my wife, who is an academic-related officer).
While this white paper is announced as the policy of the Council and the General Board, it was not agreed unanimously by those bodies. Indeed, I am one of the members of Council who opposes aspects of the white paper, although for once I am happy to say that there are some changes that I can support. For instance, at present the means for an officer to appeal against disciplinary action is to launch a counter-grievance; this nonsensical curiosity is addressed in the white paper. Similarly an improved grievance procedure, spelled out in Ordinances rather than Statues, would seem to be a sensible development. However grievance, possibly the least controversial of the five components of the proposals, seems to have received disproportionate attention both in discussion at Council, in the 'road-show' presentations (if not the 'road-show' questions), and, to some extent, by speakers today. Some may argue this is because it is grievance that is of most need of reform, others may be worried that it is being used as a smoke screen.
I will not address grievance or removal for incapacity on medical grounds further today, but will concentrate on what I view as the three contentious components of the proposals: redundancy, discipline, and dismissal. Indeed, mention of the proposals on dismissal was notable for its absence in the road-show that I attended. Yet the changes to the means of dismissal are those that I view as most insidious.
At present discipline is covered in the first part of Statute U, III while dismissal, other than for redundancy, is covered both by Statute U, I and much of Statute U, III. To some extent Statute U therefore differentiates between discipline and dismissal. Certainly the procedures are different. Discipline is the remit of the 'responsible person' in relation to an officer (e.g. a Head of Department), but dismissal is the preserve of the Vice-Chancellor and thence, if necessary, the University Tribunal (with the Chairman and other members appointed annually by Council). The University Tribunal is possibly a sledgehammer, but not a sledgehammer to crack a nut, instead a sledgehammer to deprive someone of their livelihood. Moreover, it is possible to appeal against the judgement of the University Tribunal to the Septemviri.
Under the proposals contained within the white paper the responsible person will not just deal with discipline but also, if necessary, removal from office (after having sought the Vice-Chancellor's permission), with an appeal to, in essence, a watered down tribunal.
Will it be easier to dismiss officers? Do I need to ask? Further, in paragraph 8(d) there is a new list of offences that can lead to disciplinary action (and thence removal from office); this list includes 'breach of the University or Department regulations, rules, policies or procedures relating to safety, finance or any other matters' (my emphasis). Well that's quite narrowly drawn isn't it? Is there anyone in the University who has not at some point fallen foul of that clause? Have you ever not got three quotes before buying your expensive laptop? Have you ever, or even persistently, used the Head of Department's parking space? Was this covered in the road-shows? No. Why not? I believe that the answer to that lies in contributions to Council meetings, and private discussions I have had. In essence there is a view in certain quarters of the University that it is too hard to dismiss under-performing staff, and there is a desire to make it easier to dismiss such staff. Of course in a University of this size it would be surprising if we did not have some staff who underperformed (and a case could be made that one is speaking at the moment). However, if easier dismissal is an aim, the honest way to proceed is not to leave it unspoken, but to argue the case in the white paper, at the road-shows, and in the Senate House.
However, suppose I am wrong and easier dismissal is not a motivation, let me then propose an alternative means of achieving the declared aim of a common framework. Why not have both the current Statute U procedures and the new proposals (based as they are on the Assistant Staff framework), and allow members of staff to choose the procedure they wish to trust? Some members of the assistant staff might then elect to 'level-up' and follow the University Tribunal and Septemviri route, while if an officer wishes to place his or her livelihood (if not life), in the hands of her or his Head of Department, and an ad hoc tribunal, then she or he could 'level down'. There would be a common framework, and those who want timeliness, including only ten working days to appeal against dismissal, could have it. As an aside I nearly added 'and summary dismissal' after 'timeliness', but that would be unfair; although not nearly as unfair as the use of the term 'summary dismissal' in the road-shows to describe the current redundancy procedures.1
Which brings me to spin, and has there been spin. Let me give two examples.
First, it has been put to me by a senior member of the University that Statute U 'is now significantly inconsistent with employment law as that has been amended and has evolved since the adoption' of that Statute. What he omitted to observe was that that while the Statute used to be deficient in that it did not comply with procedures put in place by the Employment Act 2002, that problem at the time of writing was about to be dealt with, and has since been fixed because the Employment Bill passed in November 2008 repealed the procedures! Let's be clear there is no legal reason to repeal Statute U (although good practice may require some minor tweaking).
Second, at the Heads of Department road-show (as opposed to the road-show for the rest of us) a slide headed 'Possible Misconceptions' posed the question of whether 'it will be easier to make officers redundant', and answered, in capitals, 'NOT SO'. So having no votes of the Regent House instead of two (in the case of academic-related officers) does not make it easier to make officers redundant? A member of the Regent House who buys that, or the Brooklyn Bridge, deserves this white paper.
I find unnerving this lack of candour over, inter alia, the motivation for making dismissal and redundancy easier. I am worried that we are slipping back to the late 90s when the central bodies sought loopholes in Statutes and Ordinances rather than face the Regent House with reasoned proposals. Back then the appointment of unestablished Directors without consulting the Regent House, instead of seeking reform of the University Administrative Service via the Regent House, significantly contributed to the CAPSA/CUFS debacle. Unfortunately, there is some evidence of a resurgent fear of putting matters to the Regent House in this white paper in that it is proposed that Council could modify the Codes of Conduct without reference to the Regent House. As other speakers have observed, this is a case where the Regent House should recall Statute A, III, 42 and not allow key legislation to be delegated to Council in Codes of Conduct.
This leads me on to good government. The worst aspect of these proposals is that they potentially undermine our self-governance. Participatory governance cannot work if you are wary of (or even scared of) participating. Twenty years ago we had cast iron tenure.3 The current Statute U requires two votes of the Regent House in the case of redundancy, or trial by independent University Tribunal and appeal to the Septemviri in the case of dismissal. This is nearly as comforting as tenure to those rank and file members of the Regent House who wish to stand up and oppose proposals being touted by Council and endorsed by the Vice-Chancellor, their Head of School and/or, more pertinently, their 'responsible person', including those so-called 'responsible persons' who have circulated emails advocating one view or another (normally the establishment view) in recent ballots. How might this change if the white paper proposals go through? Is a member of the Regent House going to be as empowered (to use an HR word) to oppose her or his 'responsible person', e.g. by calling a ballot or signing a flysheet, if it is that same 'responsible person' who has power to dismiss her or him?
This is not rhetoric. Having done more than my fair share of collecting signatures for ballots and flysheets, I know that even with the current safeguards it's already hard enough to persuade sympathetic academic-related officers (with the notable exception of computer officers), and even some academics, to sign up because of fears over what their 'line managers' might think. There is a danger if the proposals in the white paper are accepted that we will be close to a payroll vote, and the collapse of our self governance. Self governance requires confidence, and the proposals in the white paper undermine that confidence, or is that perhaps another unspoken aim?
Let me be clear, I am not arguing against redundancy when there is no job. If someone has been employed as a widget administrator, and there is no longer a need to administer widgets, and the officer is unwilling to be retrained and/or be redeployed, and if a case can be made to the Regent House, then invoking Statute U seems appropriate (although my guess is that the officer will have read the writing on the wall long before that). Similarly I am not arguing against dismissal in the case of, say, conviction for an offence such as to render the person convicted unfit for the performance of the duties or for an offence of gross misconduct (which is already allowed by Statute U). I am arguing against placing the power of redundancy (in the case of academic-related officers) and dismissal (in the case of all officers) in the hands of essentially one person.
To finish I would like to make a suggestion. While the white paper makes a great deal of academic freedom, it's not clear that the HR Division itself is really in favour of freedom of speech. As part of my concerns over the white paper I have tried to talk to members of staff, here and elsewhere, who have been dismissed, or 'persuaded' to take severance or early retirement. I have found it difficult to find out what happened because of gagging clauses. In a University that believes in freedom of speech they are an affront. Even the HEFCE does not seem too keen on them, at least in the case of Senior Staff earning more than £70,000:
Institutions must not agree to confidentiality clauses within any severance agreements except where it is necessary to protect commercially sensitive information. Commercially sensitive information does not include information on the details of the severance package itself, nor generalised clauses whereby individuals undertake not to make statements that might damage the reputation of an institution. However, there may be exceptional cases not covered by commercial considerations, where it is in the public interest to include a confidentiality clause. In these circumstances the institution must consult with me as HEFCE chief executive, in my capacity as Accounting Officer, before agreeing to such a clause.
The University should have similar restrictions on confidentiality clauses, but for all staff.
In our 800th year how do we want our celebrations to be remembered? So far we have had an impressive light show, a tacky lapel badge, and a thrown shoe; do we really wish to add to that a bloody argument over weakened tenure, diminished self-governance, and curbs on freedom of speech, leading to lower staff morale?
1 See http://www.admin.cam.ac.uk/cam-only/offices/hr/statute_u.pdf.
2 Statute A, III, 4 states that 'whenever it is provided that an act or thing shall or may be done or determined by the University, it shall be done or determined by Grace of the Regent House unless it is expressly stated that it is to be done or determined otherwise, provided that the Regent House may delegate to the Council or to another body authority to act on its behalf in such matters as it may from time to time determine'.
3 And as I understand it there is no legal reason why we could not revert to such tenure, so another route of reform might be just to seek out an old copy of Statutes and Ordinances.
Professor Sir RICHARD FRIEND (read by Professor I. M. LESLIE):
Deputy Vice-Chancellor, these proposals to restructure disciplinary, dismissal, and grievance procedures are reasonable and necessary. Our present arrangements may have been appropriate for this University many decades ago, but they do not sit comfortably with our current operation. We need to have in place regulations that comply with the law, put fairness towards the individual paramount, and make possible timely and workable resolution of problems as they arise. Fairness requires that we move to treat all staff on the same employment basis. The distinction between 'officers' and 'NCOs' that is embedded in our present structure may have seemed appropriate in the nineteenth century, but not now. I trust that discussions about the current proposals will be appropriately balanced between the interests of officers and of assistant staff and of unestablished staff.
Dr M. R. CLARK:
Deputy Vice-Chancellor, in my recent remarks to the Discussion of the Annual Report of the Council (Reporter 6138, 28 January 2009),1 I gave my reasons for not signing that Report because I felt that as a member of Council we had not been given sufficient opportunity to take strategic decisions on the Statute U review which has led to the white paper which is before us today for discussion. The white paper itself implies in several places that the views and recommendations have the support of Council, however unlike a Report the document is published to Regent House without signatures and thus there was no opportunity given for individual members of Council to indicate whether they were in agreement, or whether they wished to attach a note of dissent. Let me be clear in stating that had this paper been published as a Report I would have asked for a note of dissent to be attached.
In addressing the white paper, I would also like to record that I am currently Vice-President of Cambridge UCU and that I thus take a very keen interest in matters that affect the employment rights of the staff groups we represent as a trade union. I thus also speak as someone who has accompanied members and witnessed the redundancy and dismissal processes of this University in action, mainly as used against unestablished staff. However I note with some horror that the current proposals seem to be an attempt at a leveling down of practice to the lowest common denominator rather than a leveling up to best practice. In my experience, no individual member of unestablished staff has ever managed to successfully win an internal appeal for dismissal or redundancy, and even if they later bring the case before an employment tribunal, the University normally is prepared to settle out of court with a cash settlement which unfortunately still leaves the individual without a job and with their career prospects potentially damaged (and as we have also just heard, usually a gagging order). Professor Anderson has given us one example with which I am familiar, but there are unfortunately other examples that could be used. Rather than introduce similar processes for established staff I suggest that we should seek to provide greater protection for the academic freedoms of our many unestablished research staff. We ask them to contribute to research and teaching of the highest academic standards yet we fail to grant them the necessary employment protection to ensure that they are able to do so without interference.
It has become clear to me that many staff have mistakenly come to believe that we are obliged to implement the recommendations in order to comply with national employment legislation. Even if our Statutes were not compliant with such legislation it is clear that we would still be obliged to comply with the minimum required national standards, but that at the same time there is also nothing wrong with us having additional employment rights enshrined within our own Statutes that then go beyond those minimum requirements. There are very good reasons why employment protection within universities needs to be greater than is normally expected in other occupations. A fundamental expectation in a university is that individuals should have the academic freedoms to pursue lines of inquiry and to espouse views that might not be widely accepted and which could even bring them into conflict with some of their colleagues, or with those in positions of authority. In his recent television documentary on Darwin, Sir David Attenborough gave an example of how as a student of geology here at Cambridge, one of his Professors was very dismissive of the idea that continents might be able to drift apart and thus help to explain the observed distribution of species around the world. I'm sure that most of us could come up with similar examples from our own disciplines, where controversial new ideas firstly are resisted by the establishment but later eventually become more widely accepted. Since in such disputes the seniority of the participants is often asymmetric it is important that the more junior participants are protected from undue pressure being applied using threats to their employment status, particularly threats of dismissal. I'm sure that those who support the white paper will now wish to rush to point out to me that it still preserves all the relevant clauses that specifically refer to academic freedoms. However an important consideration that was given some prominence in the debates leading up to the 1988 Education Reform Act was that any protection offered with respect of academic freedoms had to also ensure that it was not too easy for an alternative reason for dismissal to be contrived. That is why Statute U also offers important additional protection with respect of redundancy and dismissal on disciplinary grounds and furthermore these rights were enshrined in a Statute precisely to ensure that they could not be easily undermined without reference back to Her Majesty in Council.
Whilst it may be reasonably argued that some of the finer details of the processes could be established in Ordinances, thus allowing the University to respond more rapidly to possible future changes in legislation, it is totally unacceptable that most of the detail is to be put into codes of conduct that could easily be changed without further reference to the governing body (Regent House). Furthermore it is also unacceptable that the key provisions are not retained within Statute, thus making it more difficult to undermine the major aspects of employment protection, without proper debate and consideration by Regent House and by Privy Council. The Statute should still spell out rights to a fair hearing, and also rights of appeal to independent authorities. Unfortunately the current proposals undermine this fairness and independence by giving most of the crucial appointment decisions to the so called 'relevant authorities' or even to those 'delegated by the relevant authorities' when it is quite clear from my experience that they may have partisan interests in any disagreement. Another aspect of the proposals that I find to be despicable is the suggestion that the final decision on redundancies of posts will not be referred back to the governing body, Regent House, and that for the many officers not listed in Schedule J, the final decision will rest with Heads of Institution. Just as the authorization for the creation of established posts rests with Regent House as governing body, so should the authorization for the abolition of established posts. The role of Heads of Institution in such circumstances is to clearly make the case for redundancy of the posts to the Regent House as the ultimate governing authority. Deputy Vice-Chancellor, the current proposals in this white paper are completely unacceptable and unless they are radically altered for the better we should certainly not be tempted to repeal our existing Statute U.
Mr M. LUCAS-SMITH:
Mr Deputy Vice-Chancellor, I wish to make only a few points, as many others here have already rehearsed the arguments in depth and with a better understanding than I have.
My first concern is constitutional. This is the demotion of the matters to a code of conduct. While I agree that primary legislation is not normally the place for detailed procedure, Ordinances would seem to be the obvious location for this legislation. At the second consultation meeting that was held to discuss this white paper, Professor Andy Cliff made the point that the Council would seek views and issue proposed changes to codes of conduct if and when they were to change in future, if my memory serves correctly. In this case there seems to be even less justification for demotion to mere codes of conduct. I believe that provision as Ordinances would provide openness, and would provide an enhanced level of trust by members of the Regent House in them. Professor Cliff further made the point that procedural matters are often referred to in employment tribunals and at earlier stages of a grievance procedure. It is clear therefore that they have a quasi-judicial role, further indicating the need for them to be in Ordinances and not informal codes of conduct.
The second point I wish to raise is the concern about the loss of academic freedom for academic-related staff. Many such staff, and I include people I see directly in front of me, can be said to be working at an academic level, or producing academic papers and so on. These people will no longer receive the protection they currently enjoy on academic freedom. The white paper seems to have nothing to say on this matter, let alone any justification. Are the Council and General Board aware of the activities and the work that these people do? If there is some view that some posts currently academically related are not really academically related, then the solution there surely is to re-designate them as being non-academic in some way, not to reduce the academic freedoms of those that are.
My third concern, which does not appear to have been raised so far, is that splitting off of academic-related posts could lead to proposals for amendment of membership of the Regent House along the same lines. Membership of the Regent House is still, I believe, a matter to be dealt with under the unification proposals, of which the single spine - bent and misaligned a spine as it may be - was a first step. Academic-related staff should be cautious of allowing these changes through in case further changes relating to membership of the Regent House become proposed.
In concluding, I wish to make clear that I support the principles of updating procedures to more modern standards. My own Department, Geography, has seen a long and drawn-out case over the removal of two cartographic positions, leading to the loss of two skilled and valued members of staff. Much bad feeling has been generated as a result of this, both from support staff, academic staff, and academic-related staff. So it is very important that clear, efficient, and fair procedures are in place. So in concluding, I hope that the unfair changes relating to academic-related staff and the question of implementation of these procedures as Ordinances and not codes of conduct be addressed, so we can all have confidence and trust in these proposals, which is surely in everyone's interest.
Professor A. D. CLIFF:
Mr Deputy Vice-Chancellor, this has been an important Discussion on a major governance topic. The working party appointed by the Council and the General Board wishes to thank all the contributors. Their remarks will be taken into account in the advice which the working party provides to these bodies.
Professor Brown noted in his introduction that, in framing the proposals in the white paper, the working party has sought to simplify the University's grievance, disciplinary, and redundancy procedures as compared with Statute U, to make them less judicial, more timely, and fairer in operation, and cast in plain and approachable language. As far as possible, the new Statute and Codes of Practice are formulated in a way which is applicable across staff groups. That is particularly the case with the disciplinary and grievance processes for University officers which have been simplified to conform to ACAS best practice. A formal role has been given to mediation in dispute resolution, thus filling a hole in Statute U. If the Report version of the white paper is approved by the University in due course, substantial progress will be have been made towards achieving the University's stated unifying aim of equal employment treatment for all staff groups. This will build on the equality objectives of the pay and grading restructuring and the single salary spine developed through the Framework Agreement. Subject to such approval, the Council and the General Board intend to review the procedures for unestablished academic, academic-related, and assistant staff to progress further towards unification.
Now I wish to comment upon four points made in this discussion which appear to depart from or to misinterpret what is stated in the white paper.
Academic freedom. It has been argued that the proposals in the white paper attack academic freedom. Protection of academic freedom is not removed from anyone by these proposals. As Dr Clark noted, the wording of the new Statute (D, IA, 1) restates, unchanged from Statute U, I, 1, the guiding principles of academic freedom. This is supplemented, but not diminished by, the code of practice adopted by UNESCO in 1997. This code amplifies the guiding principles in relation to academic freedom retained in Statute to signal its fundamental importance to the University. Among other things, this code explicitly asserts the right and the opportunity of officers, without discrimination of any kind, to take part in the government of the University and to criticize the functioning of higher education institutions, including the University - a vital safeguard in the context of the self-governing community which is Cambridge. Professor Anderson gave two examples to support his contention that these proposals are an attack on academic freedom. In both cases, the disciplinary procedures proposed in the white paper could have prevented dismissal on the grounds he stated.
Redundancy. A number of contributors have commented upon the handling in the proposals of a redundancy situation for different groups of officers and have urged that the redundancy procedures for academic and academic-related staff should be transported unchanged into the new Statute. I do not agree. Let me sketch why to reinforce Professor Brown's remarks on this topic.
In the proposals, for staff whose principal duties are teaching and research, Regent House approval is still needed as in Statute U to declare a redundancy situation. However, in Statute U, once a redundancy situation has been confirmed, individual officers have to be selected for redundancy against specified criteria. Then a second vote occurs in the Regent House on these named individuals. This is contrary to any decent notion of equal opportunities and cannot be allowed to persist. And how can all members of the Regent House be expected to have sufficient information about named individuals to make their own independent judgements? Or do they simply rubber stamp the names before them? If so, what is the particular value of requiring Regent House approval? Or do the Regents overturn the recommendation of the redundancy committee and draft in other names instead? How fair is that?
Instead, the arrangements in the white paper propose that the second stage of a redundancy situation should be conducted by the General Board - a committee of academic peers - and subject thereafter to a right of appeal. This avoids both the humiliation of trailing the name of anyone chosen for redundancy before the Regent House and the potential unfairness of the current process.
For officers not in the supplemented Schedule J list, the white paper proposes that the approval of the Regent House is no longer required to declare a redundancy situation. Instead, the competent authority for the institution concerned (the General Board or the Council), will determine whether a redundancy situation exists. Beyond that point, the redundancy process follows exactly that for Schedule J officers.
The reason the proposals distinguish between University officers holding academic and academic-related positions in determining a redundancy situation is that the former have employment contracts which specify teaching and research as their primary duties; the latter do not. For the former, the Regent House has, with the General Board, a responsibility in addressing the main aim of the University to assess the balance of teaching and research effort between different subject areas which the University should pursue. It is thus right that the Regent House should have an opportunity to decide upon redundancy situations which affect this balance in Faculties and Departments. In contrast, there is no special reason why the Regent House should have to handle redundancy situations for staff whose primary duty is not teaching and research. The alternative route in the proposals for non-Schedule J officers is transparent and just. Indeed it meets in every way the requirements that apply in any employment situation. The working party recognizes that there may be some officers whose posts are not in the augmented Schedule J list but whose duties have migrated over time, for whatever reason, to include substantial amounts of teaching and research. Where such a case exists, it should be reviewed and positively addressed in the individual's contract of employment.
The Employment Act 2002. One speaker has suggested, given that the recent Employment Act 2008 amends and simplifies the procedures of the Employment Act 2002, there is no need to change Statute U in any substantial regard. The Council and the General Board consider that the procedures in the 2002 Act, in providing for a hearing and a right of appeal in disciplinary and grievance matters and which are followed in the white paper, define the requirements of fair process. They have stated they have no intention of modifying their proposals in consequence of its passage.
And finally, on whistle blowing. It has been argued that protection from dismissal for whistle blowing has not been covered in the white paper. This is not so. Such protection is explicitly given in Annex F, paragraph 8(d).
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Cambridge University Reporter 11 February 2009
Copyright © 2009 The Chancellor, Masters and Scholars of the University of Cambridge.