Wednesday 9 December 2009
Vol cxl No 12
A Discussion was held in the Lady Mitchell Hall on Tuesday, 24 November 2009 and continued on Tuesday, 1 December 2009 in the Senate-House. On Tuesday, 24 November Deputy Vice-Chancellor Professor J. K. M. Sanders was presiding, with the Registrary’s Deputy, the two Proctors, a Pro-Proctor, and sixty other persons present. On Tuesday, 1 December Deputy Vice-Chancellor Professor A. C. Minson was presiding, with the Registrary’s Deputy, the two Proctors, the two Pro-Proctors, and fourteen other persons present.
The following Report was discussed:
Joint Report of the Council and the General Board, dated 27 October 2009, on disciplinary, dismissal, and grievance procedures (Reporter, p. 131).
The following remarks were made on Tuesday, 24 November:
Professor W. A. Brown:
Mr Deputy Vice-Chancellor, it is nearly two years since a green paper was issued by Council and the General Board on the reform of the University’s discipline, dismissal, and grievance procedures. Since then the proposals have undergone a process of consultation as detailed as any in recent years. The green paper has been subject to extensive comment – in Regent House, Faculty Boards, road shows across the University, and many, many individual contributions.
In the Report before you we have marshalled all the criticisms into some fifty points and variations, and have responded to them. Some we have argued are based on misunderstandings or are inappropriate. But a substantial number we have accepted as improvements. We have altered our recommendations accordingly. We are very grateful for the suggestions of so many colleagues, not least in our own Law Faculty, which have helped us to refine these proposals.
This is a Joint Report of the Council and General Board. It discusses the proposals for change in the light of the points raised in consultation. It then sets out the proposed amendments of Statute and of Ordinances. It provides proposed Codes of Practice, guidance on the use of mediation and on what constitutes gross misconduct, and a summary table of the main changes.
The need for this overhaul arises in part from the unsatisfactory nature of our present disciplinary, dismissal, and grievance procedures, and in part from the fact that employment practice has changed substantially in recent years. The inadequacy of our present procedures is reflected in the time they are taking to deal with cases – for example, the score or more grievance cases that are under way at any given time are taking on average a year to settle, and some several years. This is not a case of delays to refine justice. Delays generally amplify the bitterness of disputes and of grievances, increasing the collateral damage to colleagues and the Departments affected.
But the University has to keep up with the developing requirements of British employment practice and human rights law. The point is not that the last couple of decades have seen a substantial increase in the range of substantive individual employment rights; access to these is, of course, unaffected. The issue is one of procedures. Irrespective of whether cases might end up with Employment Tribunals, the University would be letting down its employees if it did not follow good practice in employment matters.
The main ways in which practice has developed is in the increased recognition of the requirements for timeliness, proportionality, and the use of mediation. Timeliness means that the putting right of grievances against the employer, or the taking of disciplinary steps against the employee, are conducted with the minimum delay that is consistent with due procedure. Proportionality means that the procedures for fact-finding, hearings, appeals, and so on are appropriate to the gravity of the issue in hand. A growing preference for mediation reflects the fact that many work disputes can be resolved with a bit of disinterested conciliation, leading to the informal negotiation of changes in work arrangements. Early interventions of this sort with mediation are the best way of avoiding a hardening of disputes into legal battles which usually increase stress and delay, and from which the main beneficiaries are always the lawyers.
There is one issue which came up during the consultation on which there was a clear and understandable division of opinion. On this the Joint Report offers the Regent House a choice. At its heart is the question of which of our colleagues should have special protection for freedom of expression and enquiry. Freedom of expression has been characterized by George Orwell as ‘the right to say what people do not want to hear’. Freedom of enquiry might be characterized as ‘the right to investigate what people do not want to have investigated’. Both are fundamental to academic freedom. Their defence places a special emphasis on the protection of academic tenure, and this is important when we consider the procedures for redundancy.
Special protection is required against redundancy situations affecting those pursuing academic enquiry. As a result the Report proposes that, as at present, such decisions should be made by Regent House. But how are these University officers to be identified? It is proposed that they are those covered by Schedule J (broadly those formerly known as University Teaching Officers), and the indication that they are engaged in academic enquiry is that they are entitled to study leave.
Now it may be that there are other University officers whose particular roles also require them to engage in academic enquiry – possibly certain computing or library roles – in which case the Report’s proposals leave it open to Faculty Boards to argue these special cases, and to persuade the General Board. But it is the view of the Joint Report that the protection for academic freedom should be properly focused in this way. However, opinion across the University is clearly divided on this. So the Joint Report offers a simple choice of vote options. The choice is between whether the requirement for redundancy proposals to be voted on by Regent House should, on the one hand, cover all University officers or, on the other hand, cover just those entitled to study leave plus any others seen as special cases.
The Joint Report’s proposals are aimed at dealing with the grievances of University officers, and with disciplinary and dismissal cases affecting them, in as sensitive, timely, and independent way as possible. It seeks to follow the ‘best practice’ advocated by ACAS, the independent Advisory, Conciliation and Arbitration Service. The University’s embryonic mediation service is currently being developed along ACAS’s recommended lines. Disciplinary proceedings currently end with the decision of an individual’s Head of Department. If the officer wishes to appeal against the decision, she or he can only do so by issuing a grievance against the Head of Department. This is unsatisfactory; a formal right to appeal against the disciplinary action should be provided. In future there will be a right of appeal to a committee of three independent people.
Indeed, three-person appeals committees drawn from standing panels will become a general feature of the new protections. In many ways these reforms will provide the less cumbersome procedures that are already available to non-University officers. But there are also some reforms here which the assistant staff are interested in having extended to them.
This is important with regard to the anxiety that the proposals might ‘level down rather than level up’. They do not. In certain respects, assistant staff procedures more fully comply with the terms of ACAS criteria than those for University officers. And the aim in any event is to ensure that fair, timely, and proportionate procedures apply to all staff, academic or assistant, employed by the University, and not to level in any preconceived direction.
The proposals do not in any way undermine academic freedom. There has been no dilution in the protection provided to officers in cases involving discipline and dismissal on non-redundancy grounds. The statutory definition of academic freedom has not been altered at all.
There will be some in the University who oppose some of these changes. But over the past couple of years everything has been done to seek out all critical comments. This Joint Report either accommodates them by redrafting or provides authoritative rebuttal. There will be some in the University who wish to preserve procedures as they are on the grounds that, though imperfect, they are the devil we know. Perhaps such people have been fortunate enough not to be aware of far too many cases where allegations of, for example, bullying or plagiarism or inability to carry out duties, have soured and scarred Departments because they have dragged on inconclusively and with unnecessary litigation.
The University owes it to its employees to give them discipline, dismissal, and grievance procedures that facilitate compromise and offer independent judgement and timely outcomes. This is the purpose of this Joint Report.
Professor S. F. Deakin (read by Professor W. A. Brown):
Mr Deputy Vice-Chancellor, I would like to say something about the relationship between the proposals contained in the Joint Report and the general framework of employment law in so far as it affects the University.
The Joint Report proposes a significant structural change to the rules governing the employment of University officers. In future there would be a shortened and simplified Statute dealing with issues of principle, more extensive Ordinances dealing with procedures, and Codes of Practice and Guidance notes dealing with issues of administrative process. This is an appropriate division. Any future changes to the core principles would have to be made via the Privy Council. A more flexible mechanism is desirable for changes to procedures and processes, in order to keep pace with developments in employment law, hence the use of Ordinances and Codes. However, any such changes would still be subject to approval by the Regent House. The distinction between Ordinances and Codes reflects their different functions. The Ordinances set out procedural entitlements of University officers which need to be precisely specified. The Codes and Guidance notes provide the framework for the exercise of administrative powers by the University in its capacity as employer. The Codes and Guidance notes cannot derogate from the procedural protections for University officers which are set out in the Ordinances. Their aim is to clarify how processes will work in practice, within the parameters set out by the Statutes and Ordinances.
Three sets of changes to the content of the relevant rules are proposed: they concern, respectively, redundancy, grievances, and disciplinary procedures. The changes to redundancy procedures retain the current role of the Regent House in voting on proposals to implement redundancies in a given part of the University. The Regent House would not, in future, have a role in identifying which particular individuals should be made redundant. This change is desirable for reasons of both efficiency and fairness. According to the general law of employment, redundancy selection should strike a balance between the operational needs of the employer and the legitimate expectations of employees in terms of such factors as seniority and capability. The selection process should be conducted by the University acting in its administrative capacity, in consultation with the employees affected and with their representatives. While the Regent House as a collective body is well placed to judge a strategic case for making redundancies, it is not in an equivalent position to make judgments on matters relating to the employment or non-employment of individual officers.
Whether it is right for the powers of the Regent House to be confined in future, subject to special cases being made, to officers in Schedule J, is a matter on which opinions legitimately differ. The Joint Report recognizes this, and sets out some of the relevant considerations, and proposes a separate vote on this issue.
The changes to grievance procedures are intended to return the grievance process to its original purpose, namely that of providing an informal means of resolving work-related complaints. Statute U is vague on the objectives of the grievance procedure, and the Ordinances fail to provide an adequate framework for the conduct of the process. Over time, grievance hearings have tended to become increasingly lengthy and adversarial. This occurred in part because of the change in the law which, from 2004, required certain statutory employment claims to be pursued as internal grievances before they could be heard by an employment tribunal. That law, which was designed to reduce litigation before employment tribunals, had the effect of greatly increasing the costs of dispute resolution for employers. It has now been repealed. We should take this opportunity to clarify the aims of our grievance procedures and to put in place effective time limits and other protections against potential abuses of the process.
The proposals relating to discipline and dismissal involve the clarification and updating of existing procedures. At common law, an employer can dismiss an employee without needing to show good cause, simply by giving the requisite period of contractual or statutory notice. Unfair dismissal legislation requires an employer to put forward one of a number of very widely defined ‘potentially fair reasons’ for dismissal, but does not require good cause to be objectively established before a dismissal can be said to be fair.1 Prior to the introduction of the Education Reform Act 1988 and the drafting of the Model Statute, the University’s Statutes required that dismissal should be for good cause. Statute U continued this approach; the main changes it made concerned redundancy, not disciplinary dismissals. The Joint Report proposes to retain the same basic model, but in a clearer form. There would be no power to dismiss except for one of the reasons set out in the Statute, namely for redundancy or for good cause as the latter is defined in the Ordinance on Removal from Office, Discipline, and Grievances, paragraph 9. The reasons allowed for dismissal are the same as before, except that the phrase ‘gross misconduct’ replaces the expression ‘conduct of an immoral, scandalous, or disgraceful nature incompatible with the duties of the office or employment’ (which is now contained in the Guidance note as one instance of gross misconduct).
The result, as with Statute U, is to confer significantly stronger protection against dismissal than the general law of employment provides. The categories of reasons which are capable of constituting ‘good cause’ are strictly limited and tightly defined. In a non-redundancy case, the University would have to show that one of the four grounds for dismissal contained in paragraph 9 of the Ordinance was objectively made out on the facts. This approach can be contrasted with that of the revised Model Statute which was drawn up by the committee chaired by Professor Graham Zellick and approved by the UUK and UCEA in 2003. That draft defines dismissal so as to have ‘the same meaning as in ordinary employment law’, with a view to ensuring ‘that universities have no less power to dismiss academic staff than they do any other staff or any other employer has to dismiss any employee’.2 This is not the model which is now being proposed by the Joint Report. It may also be noted that the definition of ‘gross misconduct’ contained in the Guidance note which is set out in the Joint Report is much more restrictive, in terms of the powers which the employer is assumed to have, than the equivalent provision of the revised Model Statute, which defines grounds for disciplinary action.3
In respect of disciplinary action falling short of dismissal, the Joint Report proposes a number of procedural changes. In particular, there would in future be an appeal from such disciplinary action to a committee. At present, Statute U provides for an appeal from such action to be made in the form of a grievance. This is not consistent with the requirements of employment law. The Joint Report sets out proposals for changes to committee structures which respect the need for independence of committee members and make provision for legal representation in appropriate cases.
In short, the proposals contained in the Joint Report (other than those concerned with the redundancy of academic-related staff) involve a limited modification of the existing position. In the prominent role they retain for the Regent House, they are consistent with, and strongly reassert the value of, the governance structure of this University. They also maintain protections, both substantive and procedural, which are an essential aspect of the autonomy and freedom of enquiry of academic staff.
1See Deakin and Morris, Labour Law (5th ed. 2009), paras. 5.85, 5.112.
2UUK and UCEA, Draft Revised Model Statute, Notes on Clauses (2003), para. 3(1)–(2).
3UUK and UCEA, Revised Model Statute (2003), cl. 9.
Professor R. J. Anderson:
Mr Deputy Vice-Chancellor, we have before us a set of complex changes to Statutes and Ordinances that will amend the employment conditions of both academic and other staff in ways both gross and subtle. The heart of the matter is to make redundancy and dismissal easier. I would like to remind this House that the story seems to have started in 2004, when the General Board tried to close our Department of Architecture after it got a 4 in the RAE and became unprofitable. Celebrities rallied round, and students sat down in the Senate-House yard. The Vice-Chancellor blinked first. Had she held her nerve, then under our Statutes she would have had to win two votes in the Regent House to make the architects redundant. Reducing that number to one, or less, seems to have become a managerial objective.
Its implementation seems to have developed into an annual winter sport. After a working party had considered the matter for four years, we had a green paper in January 2008, which didn’t impress us much. The second season saw a white paper in December 2008, which was robustly criticized in Discussion here in February 2009. Since then we have had a ‘consultation’: Pro-Vice-Chancellors preparing the piste for this year by taking the proposals on a ‘road show’ of presentations to staff. (A Freedom of Information request revealed that no notes were taken of the comments made by the staff ‘consulted’.) The current winter sport season opened on 30 October with the publication in the Reporter of the same old proposals, with minor tweaks. And now off we go down the slope.
The arguments used to sell these changes to Council and to us all have changed continually. Last year we were told that our existing Statutes were incompatible with employment law; our scholars duly demolished that. We are now told that the changes are necessary because our existing procedures set no time limits for the adjudication of grievances. And indeed it is true that our existing Ordinances give little explicit guidance to our Grievance Committee how to proceed. But that can be fixed by a letter from the Registrary reminding the Committee of the relevant employment law; by no stretch of the imagination does such a lacuna necessitate a change of Statute.
However, the proposed changes should be rejected not just because they are taking the sledgehammer of changes to Statute to crack the nut of dilatory committees. They bundle together a number of quite unpleasant and unnecessary proposals, including a significant assault on academic freedom.
For centuries, we have provided a haven for heretics, dissidents, and troublemakers, who have driven massive scientific and social changes. Among the founders of evangelical Christianity, Erasmus and Foxe found shelter here; Cranmer and Tyndale ventured forth and ended up martyrs. In the last century, Keynes and Turing were sheltered despite a gay lifestyle that was a crime at the time.
Of course academics are subject to the law of the land, but the law usually has some play at the margins when it comes to context, interpretation, and enforcement. We have therefore historically grounded academic freedom in the principle that academics should not be fired lightly, and certainly not for getting into a tussle with the civil power. We don’t even ask job applicants if they have any criminal convictions. Our reluctance to sack scholars except in extreme circumstances goes all the way back to the debates on heresy in the sixteenth century, as I discuss in my Unauthorised History of Cambridge (see http://www.freecambridge.org/).
More recently, Lord Jenkins inserted a working definition of academic freedom into the Education Reform Act 1988 ‘to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions’. This reduction of status to contract trims the wriggle room enjoyed by Keynes and Turing. But Cambridge has not, as far as I know, sacked any academics for breaking the law since Bertrand Russell was sacked after his conviction for pacifism in World War 1 – and it was Trinity that sacked him, not the Chancellor, Masters, and Scholars. But certainly other universities have had their arms twisted. In my own field, a computer scientist was bullied into not studying the security of mobile phones after a phone company and their friends at a ministry made threatening noises about the law surrounding cryptography. So the safety margin is slim. It depends already on culture, on the character and principles of Vice-Chancellors and Heads of Department, more than one might like. It also used to depend on the fact that the Old Schools were weak, but that’s being fixed.
It’s now proposed that we curtail freedom still further by adding the further qualification ‘within the University’ to our Code of Practice. So what about a professor who criticizes government policy before a Select Committee? Perhaps I should declare an interest: I’ve done that a few times, and while acting as a Special Adviser to the Health Committee I’ve been criticized by name in Parliament by both ministers and government MPs. If the new world to which Professor Brown wishes to steer us is one in which a troublesome academic can be silenced by a phone call from a ministry to a Pro-Vice-Chancellor, that may put me in the firing line. It will also undermine Cambridge’s influence, and that of academics generally; if we can no longer speak truth to power, then power will stop listening. In the long term the loss of centres of independent expertise will be highly damaging to the country. I might also mention that the ‘within the University’ twist comes bundled with a Unesco declaration which not only grants academics rights but also imposes many responsibilities; any administrator worth his salt could find some technical violation in there.
Another profoundly objectionable aspect of this ‘reform’ is the proposal that academic freedom should no longer apply to academic-related staff. At last winter’s Discussion I mentioned the case of a librarian who was sacked for speaking out. Many other officers, contract staff and others – curators, computer officers, RAs – stand to lose their protection. I object to this on principle. We have colleagues who object too, but don’t dare say so as they are afraid of their managers. This is wrong.
A further proposed ‘reform’ is to curtail our right of appeal. At present, a Lecturer facing the sack for disciplinary reasons has a final right of appeal to the Septemviri, a court made up of seven senior academics (often Heads of House). Ordinary academics will lose this right; the Vice-Chancellor, however, will retain it. It’s an interesting question whether a controversial Vice-Chancellor should be easier or harder to sack than a controversial Professor of Evolutionary Anthropology.
Deputy Vice-Chancellor, Cambridge is celebrating its octocentenary. For eight hundred years we’ve been producing iconoclasts who changed the world by challenging error. And thinkers like Erasmus, Cranmer, Newton, Darwin, Russell, Turing, and Keynes often made powerful enemies. It’s not enough for a university to be an ivory tower; it has to be a great fortress, staunch in the defence of truth and freedom. Its administrators must not have the power to defenestrate a turbulent priest, lest they be asked to use it! We live in an age when ministers sack science advisers whenever the tabloids don’t like the science. The duty of universities is to provide a platform from which the truth can be spoken. Rather than nibbling away at the edges of our employment protection, the University should be leading the Russell Group in articulating this. We cannot tolerate a future in which we can study only those topics we’re licensed to; that way we cannot practice our trade with integrity. We must be more assertive – and subversive – in promoting our own values.
As Archimedes said, Πα βω και κινω ταν γαν: give me a place to stand, and I will move the earth. Cambridge’s mission is to be the fulcrum of truth, not the government’s knowledge manager. That’s why I did not sign the Report, and signed the dissenting note instead.
Mr J. M. R. Matheson (read by Professor R. J. Anderson):
Mr Deputy Vice-Chancellor, this Report is a considerable improvement on the previous draft, I particularly welcome the more equal treatment of all University officers, but it has more the feel of a next draft than a set of proposals we can vote for with any confidence. Many of the problems lie in the detail, especially in the ‘Proposed guidance to be issued by the Council’ but this is detail which materially affects the contractual relationship that we all have with the University. It is detail which matters!
An example from this proposed guidance illustrates the problem: the definition of gross misconduct, and note that this constitutes ‘grounds for removal from office without notice’. This definition consists of a list of examples ranging from the clearly very serious to things like ‘being unfit to perform duties as a result of unprescribed drugs or alcohol’ for which a more proportionate approach would seem to be being sent home to sober up followed by a strong warning. Indeed what happens if the officer has decided of their own accord to go home; this does not make them any more fit to perform their duties but, as they are not obliged to work defined hours, this relatively minor change makes the difference between possible instant dismissal and no action being taken.
Potential instant dismissal is clearly an important area so one would expect that this section will have received at least as careful thought as the rest of the guidelines. It may perhaps be argued that the guidelines are subsidiary to the three layers above: Statutes, Ordinances, and Codes of Practice. But if this is the reason behind the looseness of the drafting, important issues like this should not be relegated to this level. The whole structure of these proposals, as well as the detailed drafting, needs further thought.
Dr J. E. Scott-Warren (read by Professor R. J. Anderson):
Mr Deputy Vice-Chancellor, under the guise of streamlining current practices, these proposals make a significant assault on the safeguards that exist to protect academic freedoms and to foster collegiality across the University. The proposed changes to the procedures relating to dismissal and redundancy are clearly designed to give short-term economic considerations priority over longer-term academic imperatives. This is especially worrying at a time when the financial outlook for Higher Education institutions is bleak. I would urge colleagues to vote against these revisions to Statute U.
Professor G. R. Evans:
Mr Deputy Vice-Chancellor, ‘Questions and Answers’ arguing for the proposals before the Regent House were recently circulated behind the scenes to Heads of Department in an attempt to weaken the force of what is said in this Discussion. I understand that University email lists have been used to send these on to staff. Campaigning is an improper use of such lists and of managerial power unless lists are open to be used by those who would wish to reply, which if course they are not. Bit of a one-sided conversation. But we can reply here by the proper constitutional means, storing in our memories this lesson in the lack of respect for open democratic processes evinced by that document.
What do we want? To make Cambridge a good place to work. The ‘student experience’ is important, but the ‘staff experience’ matters too. Will these proposals improve that experience? They look distinctly ‘behind the curve’ to someone who has been working in this field for the last few years, leading a HEFCE-funded Leadership, Governance and Management Fund Project on Improving Dispute Resolution.
Procedures should be simple and clear. They should include provision for alternative dispute resolution, including non-adversarial solutions, where no one has to ‘lose’. They should be based on self-evidently fair and sensible ‘precepts’. Everyone with powers over the employment of others should be required to commit these ground-rules to memory. Now that in Cambridge line management has replaced the old collegiality of equals in Faculties and Departments, what may begin as a bungle by a line manager in handling a dispute can lead to a prolonged and complex battle to set things straight, so those who commit such bungles must be made accountable. That is why grievances take so long, Professor Brown.
There is some confused thinking in that Q and A document about what is ‘academic’ work in Cambridge. ‘It is considered that special protection should be restricted to those with the primary function of teaching and research. Those whose work, although valuable, is not of that nature, will still enjoy the protection of general employment law’. But many academic-related staff – for example computer officers – are engaged in research and development. Others supervise graduate students. If academics need the protection of being able to speak and write and publish without fear of sanctions, so do they. It is claimed that the only officers who need this protection are those who have ‘entitlement to leave … for the purpose of advancing their academic work’, namely those in Schedule J. But there are now numerous academic activities in Cambridge which do not (though perhaps they should) carry an entitlement to sabbatical leave but where protection of academic freedom is surely appropriate and necessary.
No code seeking to set limits to academic freedom can be safe. We find ourselves again in times where institutional autonomy and academic freedom for individuals have to be fought for against threatened Government interference. In the House of Lords debates on the Education Reform Bill on 19 May 1988 (Hansard, HL, 497, col. 444 ff.) a series of impassioned speeches made the connection between the protection of freedom of speech in universities and the protection of the jobs of those who exercise it. Lord Jenkins of Hillhead made that link (col. 445) as did Lord Morton (col. 445). An awareness that ‘there are some things which the Government have done in relation to universities which have exacerbated bad relations’ was in the chamber that day too (Lord Thomas of Swynnerton, col. 447). Lord Hatch wanted provisions in the Bill ‘to safeguard the individual rights of academics not against the Government solely but against the dangers that can arise and sometimes do arise from the employers and the institutions themselves’ (cols. 448–9), especially when they find themselves under Government pressure. Lord Grimond put vividly ‘the essential needs for those in universities to be able to express unpopular or alarming opinions yet not be persecuted because they are unorthodox’ (col. 450). Lord Beloff’s concern about people ‘losing their jobs because their field of inquiry calls into question conventional wisdom’ (col. 453) could have been in a letter to The Times last week about the recent sacking of Professor Nutt.
In the House of Commons debates on the Education Reform Bill on 19 July 1988 (Hansard HC, 137, col. 1027 ff.) this fundamental character of the relationship between security in employment, academic freedom, and institutional autonomy for universities in the face of Government interference was still being emphasized. ‘The legacy of all that is that university staff consider the Bill as illustrating the Government’s clear intent that many university staff should be dismissed’ (col. 1033). And weaving in and out of the debates is an awareness that once it is possible to make dismissals or create redundancies more easily, ‘managerial interest’ will come into play, and administrators under pressure from Governments using financial sanctions to get their way, will oblige.
We read in the Report we are discussing today:
Nor will the Council and the General Board ever seek to promote redundancies, with their attendant personal cost, other than in circumstances in which they are satisfied that the interests of the University require such a step.
I wouldn’t want my future to depend on that.
In the light of the extent of the concerns expressed at the time of the passing of the 1988 Education Reform Act and the alarmingly up-to-date ring of what was said then, it is outrageous to find the present Report claiming that:
It is considered that section 202 of the Act is technically spent, in that it provided that the University Commissioners should make Statutes including provision for academic freedom; they have done that and are now functus officio…
Functus officio just means ‘job done, you can go home now’. Yes, the Commissioners did their job and no longer exist. But that does not mean that the Model Statute subordinate legislation they designed could immediately thereafter be thrown out and rewritten. Not only was that clearly not the intention of section 202 of the Education Reform Act 1988 but the basics of Statute U’s protection stand in the Act itself, from which they are taken verbatim. So to abandon them would presumably require a change in the law. (And those passives. Whose opinion is this?).
You may want to change the ‘ambit’ in the future, you say? Then tell us what you mean by ‘ambit’ please. Reserving draconian powers for future use with a vague promise not to use them cannot be safe for those who may find the ‘ambit’ has changed and they are gagged or sacked. That is exactly what Parliamentarians feared, and said they feared.
Ignorance about the scope of the exercise of a discretion by a person acting on delegated authority is very dangerous indeed. Nothing is more likely to lead to the prolongation and escalation of a dispute or to injustice to individuals. This Report ducks the question. There has to be a requirement of proper training for anyone allowed any part in a disciplinary process or a process leading to redundancy. Otherwise cock-up will still further compound the unpleasant and damaging realities of the way disputes tend to develop. ‘Provisions will be made through the Human Resources (HR) Division.’ Not good enough.
I would never encourage anyone to go to an informal meeting of the kind proposed ‘at which the matter can be discussed’. They are frightening and upsetting and they mess things up. A line manager who does not understand the difference between a pastoral and a judicial function and the strict requirements about fairness in the latter will frequently compromise the fairness of subsequent stages of the process. The same person must never be the instigator of a disciplinary process, the investigator, and the judge. The investigator quickly becomes the prosecutor and almost always wrecks the chances of a fair hearing by interviewing all prospective witnesses and frightening the pants off them so that the accused cannot get them to testify in his or her defence. Few employees working in a Department are going to risk their own professional futures to support a colleague. Line management involves patronage as well as possible intimidation.
Representation. ‘The right to be accompanied, or represented, at a disciplinary hearing has always been restricted to fellow employees or trade union representatives’. That is simply not true. Statute U allows a ‘friend’, and that is important for non-union members who may want to bring someone who is not a fellow employee, say a College Lecturer. Members of the Regent House would be foolish to allow them to take away that right. Were David Williams, former Vice-Chancellor, who sat with the Commissioners to draft the word ‘friend’ still alive to say so, I suspect he would want to retain it. I am familiar with institutions’ resistance to the involvement of lawyers to represent students and staff in internal procedures but they commonly bring their own lawyers along just the same. And lawyers can be a great help in ensuring that there is fair play on a level playing field.
And Professor Williams would perhaps also want to raise a concern about the proposed removal of the right of a person threatened with loss of office for medical unfitness to insist on having his or her own medically qualified person on the panel. That must be a stronger need than ever under the present Disability Discrimination Act. I have seen disastrous outcomes for sick employees in universities not subject to the Model Statute where this requirement has never held.
Now to some category shifts. The relationship between an ‘individual’ and a ‘systemic’ concern can be of great importance; the matter is highly topical at present, as the authors of this Report should know. If you have what the QAA describes as ‘a personal dispute that you believe has developed as a result of a more general problem that has come to light at an institution’, how will these proposed revised procedures work if you want to raise concerns about systemic mismanagement and maladministration without the University instantly identifying with the person grieved against and automatically giving him or her its full support? No, I can’t see that working either.
‘A University officer might act in a way giving rise to procedures under Statute D, I, A and also to procedures under Statute B, VI, where, for example, plagiarism is alleged’. The authors of the Report do not seem to have got properly to grips with this because they have not correctly identified the problem. Persons subject to University procedures stand in a variety of relationships to the University. Statute B deals with the duty of members of the University to conduct themselves in a manner which maintains good order. Statute U deals with the employment relationship. Statute D deals with the ‘officer’ relationship. This is not the same as the employment relationship, which is why (let me remind everyone) appointees to University offices who sign the book in the Old Schools under Statute D, 1, 4 do not need to sign the employment contract HR will send them.
And there is another related category-shift problem about the best way to deal with disputes between individuals subject to different procedures as a consequence of multiple or different relationships with the authority in question; between employees subject and employees not subject to Statute U; between students and employees; where a student is also an employee; where a dispute engages someone’s relationship with a College as well as with the University.
Mediation is proposed only for use in grievance procedures. This is a serious mistake. It has far wider applications, particularly in what I have called category-shift situations where there is no common forum for an adversarial process, and the best way to move forward is to seek a solution in everyone’s interests by mutual agreement.
‘The Council of the University will maintain a panel of persons willing to act as mediators’. Fine. But what training will they have? ‘The mediator will be selected by the Registrary from that panel.’ Acceptable only if all parties are happy with that. But the choice of mediator is ultimately for the parties and the Registrary’s involvement is at the discretion of the parties. ‘The mediator will also normally have received copies of papers relating to a grievance in order to help her or him prepare for the mediation.’ From whom? On whose authority? Is the Registrary going to send over to his selected mediator a lot of information the person with the grievance hasn’t seen? That will build trust, won’t it?
It is far, far too soon to be planning to take forward Graces to change the Statutes of the University of Cambridge on the basis of this often incoherent and frequently misguided Report.
Professor D. J. Ibbetson (read by Professor A. D. Cliff):
Mr Deputy Vice-Chancellor, I speak as Chair of the Law Faculty Board. When the white paper was published last December, the Board set up a working group to look at the proposals and to draft a response to them. We were generally supportive of the clarification of the procedures involved, and welcomed the move towards a greater use of mediation within the grievance process. We did, though, have serious reservations about some aspects of the proposals.
Some of these reservations were related to points of drafting where we thought that ambiguities needed to be resolved. These have all now been dealt with and I shall say no more about them.
Our strongest doubts related to the use of Codes of Practice. We were unhappy that many of the principal procedural safeguards were put in these Codes rather than in Ordinances, especially when the Codes could be amended by Council without further authority. To a large extent our concerns have now been alleviated. The requirement that changes in Codes of Practice must be approved by Grace provides suitable protection against misguided attempts by some Council in the future to streamline processes at the expense of individual members of the University. We still have a residuary concern. I think if we ourselves had been asked to draft everything we should have drawn a clearer line between Ordinances containing mandatory rules and procedures and Codes of Practice containing commentary or advice. We do not like the mixture of musts, shoulds, wills, mays, and ‘it is good practice’ which pepper the Codes of Practice in their present form. Perhaps we have to live with the fact that this is the way in which modern employment law works, but we can envisage endless arguments over the applicability of Statute K, 5, which only applies to cases of the breach of mandatory rules.
Our second set of doubts related to the composition of appeals panels, and again these have been largely alleviated. We were then concerned that it might be very easy for a Head of Department or equivalent person to manipulate the composition of appeals panels. The power to determine who should be chosen from lists of eligible people is now in the hands of the Registrary, acting either personally or through an Assistant Registrary. We think that solves the problem. We are pleased too that our suggestion of providing that the chair of an appeal panel be external to the University has been adopted. This goes a long way towards making sure that our procedures are transparently fair. We are sorry that our further suggestion that the chair should be legally qualified has not been accepted. We still believe that it makes more sense to require this than simply to say that the panel will be provided with legal advice. The University courts have to be chaired by such a person; and the complexities of employment law, as well as the potentially controverted facts and interpretation in cases which might lead to dismissal, means that appeal panels may well be facing far greater difficulties than the University Tribunal or the Court of Discipline.
Our third set of doubts related to legal representation at disciplinary and medical hearings and appeals. We find this a difficult matter. On the one hand, there is a great deal to be said for trying to resolve straightforward disputes without the intervention of lawyers. On the other hand, in serious cases it would normally be inappropriate to refuse legal representation. The present draft reflects this tension. As well as the general provision allowing accompaniment by a fellow employee or trade union representative as of right, which gives effect to employment legislation, it is also provided that in cases where dismissal or removal from office is a potential outcome the chair of the disciplinary or appeal panel may permit the individual to be accompanied by someone other than a fellow employee or trade union representative. It is clearly envisaged that this person may be a lawyer. However, we believe strongly that the Code of Practice should go further and provide that representation should be a matter of right, not a more watered down form of companionship that depends on the agreement of the chair of the panel. In most cases a wise panel chair would probably accede to the request, but if he or she did not we can easily foresee that the next step would be an application to an Employment Tribunal, with lawyers present and added costs and stress on both sides. There is an element of self-interest in this too. An individual refused legal representation at such a hearing would no doubt look around for a friendly fellow employee who happened to be a lawyer, and who could accompany him or her as a matter of right. Many of these are in the Law Faculty, some are not. It does not matter. We do not think it desirable either that those few who have expertise in employment matters should come under pressure to give help, or that those who are not experts but are none the less willing to help should feel that they should divert some of their time away from teaching and research.
One final point. The Code of Practice for the continuation of employment beyond the normal retirement age is a mess. Everything is to be decided eighteen months before the due date for retirement, then six months later the Human Resources Division is supposed to tell the person due to retire what they have to do if they want to be continued after that date. Some rethinking seems to be needed if our processes are to make sense.
Professor I. H. White (read by Professor A. D. Cliff):
Mr Deputy Vice-Chancellor, it has been sixteen years since the University revised Statutes concerning disciplinary, dismissal, and grievance procedures for University officers, this in response to the 1988 Education Reform Act. Since then much has changed not only in terms of employment law and practice, but also in the structure and operations of the University itself. There is evidence that the current arrangements for officers are not of best practice, and also are not in the best form to provide fair, respectful, or appropriate processes for those involved. In short, changes are overdue.
I welcome the proposals of the General Board and Council in providing a new set of procedures which take away many of the existing inequities in the treatment of different groups of staff. In particular I am pleased to note the improved procedures which take the treatment of officers into compliance with ACAS guidelines and closer to the procedures for dealing with assistant staff. The major remaining differences in procedures for University officers engaged in research and teaching are to ensure that academic freedom can be safeguarded. In contrast to the long grievance processes currently used, which can result in significant anxiety for those involved, the proposed processes are less cumbersome. The policies, in my view, fairly balance the needs of the employees with those of the University, giving greater rights to individual staff members than allowed for in general employment law.
There has been substantial consultation in developing these proposals, as a result of which significant amendments and improvements have been made. As a result, the Joint Report now contains procedures which allow effective decisions to be taken in a fair and sensitive manner, affirming the importance of academic freedom, and including a series of appropriate safeguards for individuals. I therefore wish to express my support for the Report.
Dr K. M. Wheeler:
Mr Deputy Vice-Chancellor, Members of the Regent House, I will be brief today, for I have one theme only, since others will deal with the other issues.
In recent decades, our academic community has become more tolerant and inclusive – in its staff and student body – of women, of different nationalities, and of races and religions. The community has been enriched thereby, and we can be satisfied that the University is going forward, albeit slowly. For much still needs to be done.
Now, however, we seem to be engaged (inadvertently, without a doubt) in somewhat backward steps involving another kind of intolerance – that of unusual personalities and unusual minds. Statute U proposals are by no means meant to have such an effect, but they doubtless will, and the Statute U Committee need to take a more serious attitude toward the likely results of these proposed changes. For, under a new Statute U, a Dirac, a Newton, a Darwin, or a Melville, a Coleridge or a Bartok – few of these would have avoided dismissal, and then only by sheer luck and not because of structural or procedural protections of the kind we now have. The Committee is so convinced that this is not their intention that they fail to consider that, nevertheless, these are the potential results of their well-meaning, but somewhat naïve, reforms.
Conformity, it seems, is almost the new orthodoxy. Minds of the highest intelligence, originality, and innovativeness will not seem to feel welcome at Cambridge; they’re ‘different’, they don’t ‘fit in’, they are sometimes a little ‘eccentric’, ‘weird’ even, but certainly rarely ‘ordinary’. Exceptionally gifted people – often far ahead of their times and, hence, misunderstood and misjudged by their colleagues and contemporaries – are the very minds who, in the long run, make the most important contributions to the life of the intellect and to society as a whole. But their work challenges, very often, the status quo; their immediate colleagues get frightened, then they feel threatened, then they can even become angry. Then they want them out. Heads of Departments will find that very easy under the new proposed changes.
Let’s not, in the face of present day or periodic funding shortage pressures, legislate structurally and to the detriment of the future of our younger, brightest colleagues. And let us not forget that it is to Cambridge University that we are proposing to make changes regarding tolerance of originality, innovativeness, weirdness, and eccentricity. How sad that in the year we celebrate 800 years of fostering great intellectual achievements, some colleagues now propose legislation that, unintentionally, certainly will separate us from that past.
If Statute U changes prevail, Cambridge is liable, in the next few decades, to become possibly even a boring, grey, conformist place, no longer able to protect the often eccentric and unusual minds of real genius and giftedness. The stimulation, richness, and vitality such people provide gratis for the rest of us – who are inspired by their finer minds to do better work than we could ever have done without their presence – will be at risk. We all have a duty to ensure that this regressive and damaging step must not be allowed to take place. I would not wish to be a young academic today myself, and I blush at the naïveté of the Statute U Committee, so convinced as they are that these things could not possibly happen. Given the nature of our work we need much greater protection, to preserve freedom of thought and enquiry, than many other employments. Therefore, to say that the new proposals are a little bit better than other ordinary employment law is not really very reassuring.
Dr P. D. D’Eath (read by Dr K. M. Wheeler):
Mr Deputy Vice-Chancellor, given that the University is facing significant reductions in funding, it could be argued that redundancy, disciplinary, dismissal, and grievance procedures need alteration (though I myself think voluntary redundancy and early retirement schemes ought to be a far better method of meeting such shortfalls, with consequent reduction of posts for as long as this period of stringency may last). But our present procedures must be altered fairly by us senior members, and not to the detriment of our younger and future colleagues, since those of us nearing retirement will hardly be affected.
Moreover, the funding demands of the present moment should not be allowed to change those more permanent, long-term values which constitute the very working basis of an academic community, freedom of thought, expression, and enquiry, as well as adequate protection from unfair dismissal. Some of our most gifted colleagues will be most in danger, since they are often misunderstood.
While parts of the current proposals have merit, many do not, particularly the loosening of protections for our younger colleagues from unfair dismissals, by streamlining the procedures so that they become a casual abrogation of just process by decisions made on the basis of somewhat arbitrary power. The ten-day notice period for redundancy appeal is shocking. This is a regrettable document in many parts and, coming as it does on our 800th anniversary, is saddening.
Professor C. F. Forsyth:
Mr Deputy Vice-Chancellor, I currently hold the office of Deputy University Advocate and have been University Advocate and Acting University Advocate for many years in the past. As such I have had charge of proceedings before all the University Courts, including the University Tribunal and the Septemviri, the two courts which would be deprived of their disciplinary jurisdiction over academic staff if these proposals go through.
There are two things I would like to say about this: first, I am quite unaware of any structural or procedural or legal deficiencies in these courts that would justify the current proposals. On the contrary these bodies, although they meet rarely, are legally expert (through their eminent legally qualified chairmen), patently impartial, and patently independent. This is exactly what is needed.
Second, these proposals (as far as I understand them) remove the Advocate (as an expert prosecutor) and remove the legally qualified chairman of the disciplinary tribunal. But they continue to allow legal representation by the member of the academic staff where there is a prospect of removal from office. (It will be necessary to apply for the right to legal representation but it will have to be granted because of the gravity and complexity of the proceedings.)
This is a recipe for disaster. First: because, if the only lawyer present is the representative of the member of staff, it will be very easy for the disciplinary or appeal committee to be tempted into a mistake of law. The member of staff may be acquitted when this is in truth not necessary or appropriate. And second: the member of staff, if removed, will, of course, be able to go to an Employment Tribunal. And the University will find itself paying very expensive lawyers to represent it before the Employment Tribunal to attempt to patch over the errors made by one or more of its committees. I am pleased that in saying this I echo the remarks of Professor Ibbetson earlier this afternoon.
The simple fact is it will be fairer and cheaper and easier to stick with the excellent system of discipline we currently have. I am quite puzzled by why it is thought necessary in some circles to make these changes.
Mr P. ffolkes Davis:
Mr Deputy Vice-Chancellor, I speak today as the incoming Chairman of the Board of Scrutiny, and on a subject, the proposed reforms to Statute U, with which the Board was much occupied in its 14th Report last year.
The Board welcomes the publication now of the Joint Report as set out in the Reporter of 30 October 2009. Following the Board’s recommendation in its 14th Report that the outcomes of the consultative process ‘which are not to be contained in Statutes, must be promulgated in Ordinances’, we welcome the undertaking at 7(a) of the Joint Report that any proposed ‘codes of practice’ will not be approved and varied by the Council as initially indicated, but will instead be ‘approved by the University by Grace’.
As the Board previously was at some pains to point out, though it has no wish to be prescriptive in the way Council and General Board may choose to consult with Regents, the final promulgation of changes of rules and procedures is governed by protocol and such changes must be embodied in formal Graces.
It might also be pertinent to use the current Discussion to reiterate the other recommendation made in its 14th Report on this topic, that when the Council and/or the General Board wish to consult the University ‘in a wholly informal fashion’ and before it is ready to issue a Report, ‘it makes clear at the very outset of the consultation document the precise status of the document being issued, why it is not being issued in the form of a Notice or a Report, which body or bodies of the University are issuing it, and how comment is to be fed back to those bodies and within what time frame. Proper published Minutes should also be kept of any open meeting consultations.’
At this stage, the Board of Scrutiny has no wish to comment on the detailed proposals under discussion or to anticipate what their outcome might be. It is content to let the process, now so clearly outlined, run its course, as well as to note with interest that six members of the Council declined to sign the Joint Report. It is likely that the Board will have something further to say on this subject in its 15th Report.
Dr J. K. Chothia (read by Mr R. J. Dowling):
Mr Deputy Vice-Chancellor, I wish to express concern about the proposed revisions to Statute U in relation to self-governance and working conditions for academic and academic-related staff. While improvements in the grievance procedures are to be welcomed, the current proposals indicate that both dismissal and redundancy will be made easier and will be based on less rigorous criteria than have been in place so far. These are threats to self-governance, a vital element of a strong university, as well as to academic freedom and standards. They signal an erosion of the procedures and protections essential to a sturdy intellectual environment. We must not permit potential weakening of freedom of expression. The distinction being made between ‘freedom of enquiry’ and ‘freedom of expression’ (paragraph 10 on page 132) is particularly to be deplored. I urge colleagues to not to support the proposed revisions to Statute U.
Mr R. J. Dowling:
Mr Deputy Vice-Chancellor, I am a member of Council who did not sign this Report. I signed the dissenting note instead.
This Report is going to cause discontent in the University. It is going to a vote. It is going to cause angry fly-sheets before the vote. It is going to cause ill-feeling after the vote, no matter who wins. And that was entirely unnecessary. The Report addresses discipline, dismissal, and grievances. These are three topics with three processes and could have been the subject of three Reports. The grievance Report would have passed without much of a ripple. But the authors of this Report know that there would be much less chance of getting the dismissal changes through without the smokescreen of improvements to the grievance process.
Make no mistake; this Report is about dismissal, about redundancy, about removing posts from the University. Ignore everything you hear about how awful our grievance procedures are. If they are awful then a Report that addressed that in isolation would have had my support. Focus on dismissal. Read the Report and ask yourself ‘does this make it easier to get rid of me?’
Money is getting tight. The London colleges are in the throes of removing huge swathes of staff. Do you not think the same temptation is felt here? ‘But,’ thinks the academic, ‘they’ll never get rid of me, just some smelly IT bod’. Welcome to the world of divide-and-conquer. Once your computers don’t work they’ll come for your librarian. Then they will move on to your other support staff. And finally they will come for you. Once the mood of letting others swing has become ingrained in this University, and your own support staff are gone, who do you think will stand up for you?
The Report’s procedures are littered with references to the ‘competent authority’. Who is that? It doesn’t matter; it’s not you. This Report’s proposals empower distant, politically active figures to swing the axe.
This Report is about easy dismissal.
There is no legal requirement to change our dismissal processes. With a modern reading we might blanch at the idea of having individuals’ names written into Graces to make their posts redundant and a Report that proposed changing just that feature would have received widespread support. So why wasn’t that sort of change proposed? Because it doesn’t make it easy enough to get rid of people. And that’s all that the authors of this Report care about.
This Report is about dismissing the staff of the University. Don’t let them.
Professor N. J. Gay:
Mr Deputy Vice-Chancellor, I would like to address an issue which to date has received little attention, the relationship and importance of the proposed abolition of Statute U for the Colleges. In 1988 the University Commissioners were charged under section 202 of the Education Reform Act to make Statutes providing for academic freedom. This gave rise to Statute U in the University and a closely similar provision which was imposed on the Colleges in 1993, the ‘model’ Statute. The Model Statute provides academic staff based in Colleges with protection over and above that provided by employment law equivalent to University officers in Schedule J.
I think it is important to emphasize the essentially symbiotic and complementary nature of the Colleges and the University: they are like the Holy Trinity, separate but indivisible. Within this context it is necessary to recognize that a substantial number of academic staff whose interests are protected by the ‘model’ Statute are employed by the Colleges and that these individuals make an enormous contribution to the life of the Collegiate University in terms of teaching, administration, and research. The latter contribution is now recognized through the Research Assessment Exercise and the Colleges receive a funding stream as a result. The College Teaching Officers are therefore in every sense the peers of their University counterparts except that their primary responsibility is to the College rather than to their Faculty. As such they are entitled to the same rights as UTOs in relation to academic freedom and employment. Unfortunately it is not the case that they get these benefits and, despite the Model Statute, the CTOs remain an exploited underclass within the Collegiate University.
With regard to employment legislation several changes have occurred in the last decade that should have led to an improvement in the terms of conditions of the CTOs. Most significant is the the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. In response to this legislation the Council and General Board of the University produced a Joint Report.1 Of particular concern was the requirement to provide ‘objective justification’ for making a fixed-term appointment, for example for maternity cover. The University concluded:
To make an appointment for a fixed term in circumstances where there is an evident on-going need for the office or post or the duties attaching to the office or post is highly unlikely to be justifiable on objective grounds. Moreover, since the recent abolition of the unfair dismissal waiver clause it is no longer possible to rely on its protection to prevent a claim of unfair dismissal resulting from non-renewal of a fixed-term contract beyond its current expiry date
and the Council’s Report continued:
The Council and the General Board propose that, in all cases where there is no objective justification for making a fixed-term appointment, appointments to University offices or to an assistant staff post be to the retiring age, and that, where appropriate, the appointment be subject to confirmation on satisfactory completion of an appropriate probationary period.
Although the University rapidly complied with this legislation it is to be regretted that a number of Colleges continue to employ CTOs on fixed-term contracts in the absence of objective justification and then sack them at the end of the fixed term, only to employ someone else to do the same job. These acts are patently illegal yet senior College figures seem to think they are above the law. Perhaps the most disgraceful argument I have heard in this regard is that, yes, this is an unfair dismissal but the compensation Employment Tribunals award in these cases isn’t very much. This is like a thug mugging someone and then saying ‘it doesn’t matter because if they catch me I’ll only get a £50 fine’. What the Colleges don’t appear to realize, however, is that they are also flagrantly in breach of the Model Statute. Whether they will find the compensation and associated costs of an action in a higher court quite so affordable is open to question.
It is clearly the case that the Colleges think they are within their rights to act in this way and it is important to consider whether or not their justification has any merit. In my experience it seems to consist of what I call the ‘Chicken Licken’ argument, that is ‘if we treat the CTOs fairly then the sky will fall down’. This is of course a pernicious derivative of Francis Cornford’s Principle of the dangerous precedent2 and I have heard it being deployed for various purposes almost continuously during the thirty years I have been in Cambridge. As of today the sky has not fallen down but tomorrow – who knows?
In conclusion I would like to ask the Council and the General Board to consider what the impact of the abolition of Statute U would be for academic staff based in Colleges and if the changes proposed here are approved in some form whether there will be consequential changes in the ‘model’ Statute, and I refer back to Professor Evans’s earlier remarks on this matter. I also ask them to put pressure on the Colleges to bring their employment practices in line with those of the University. A failure to do so is likely to result in litigation against the Colleges and this would by association bring the University into disrepute. Finally, I would like to add my support to remarks relating to the changes in the appeal procedures which have been made, especially those relating to the removal of legal representation.
2F. Cornford, ‘Microcosmographica Academica’ 1908.
Professor M. E. McIntyre:
Mr Deputy Vice-Chancellor, Members of the Regent House: I cannot pretend to political, historical, bureaucratic, or legal erudition, so will speak very briefly and personally. Just three points:
i) I have had a happy and productive career in this University, but in the new regime I would probably be considered to have been under-performing.
ii) That’s because of the work for which I was elected to the Royal Society, most of it done here under the protection of academic freedom. None of that work could have been justified in advance, to any bureaucracy, nor to any administrator who might have found it convenient to sack me – especially since I’m not a politically clever person. I’m not even interested in politics.
iii) So even in those easier times my work, and my election to the Royal Society, and any resulting contribution to the prestige of the University, depended crucially on the academic freedom that is now under dire and imminent threat. So for the sake of our young people – tomorrow’s brilliant minds, whom we need more than ever with all the threats, not just to civilization and science but, probably, the future of the planet itself – I urge the Regent House to leave Statute U as it is.
Professor R. J. Bowring:
Mr Deputy Vice-Chancellor, I speak today not as a member of the Board of Scrutiny but as a member of the Department of East Asian Studies. In general, it seems to me that most of the concerns raised in the course of the various discussions on this matter have been satisfactorily resolved in the Joint Report we have before us, so I would like to limit my remarks to the matter of Schedule J. The Report is correct in stating in paragraph 8(b) that the distinction between those officers in Schedule J, who have a right to study leave, and those outside Schedule J, who do not, is of long standing. The Report then goes on to state that ‘in individual cases it may be possible to argue that the wrong categorization has been adopted. However roughness at the edges does not mean that the principle is not clear.’ This is undoubtedly true and I see that certain other offices have now been included and presumably the gate has been left ajar for the future. But this is a red herring; the real problem lies elsewhere, namely in the extension of this distinction to other, unrelated areas.
As far as I can ascertain the problem goes back to the regrading exercise four years ago. As part of that exercise the Personnel Division (as was) chose to use this particular distinction as a convenient boundary line between two concepts that were new to Cambridge at the time, those of ‘academic’ versus ‘academic-related’. I can only presume that some bright spark dreamt it up to avoid subjecting Lecturers and Readers to the laborious, difficult process of filling in PD33s. ‘Academic’ posts thereby escaped regrading completely; ‘academic-related’ did not. This caused enormous resentment. In my own Faculty we have a number of Senior Language Teaching Officers whose job it is to teach; and teach they do, long hours, and the teaching programme would not survive without them. In all respects other than that of entitlement to leave they are treated as equal to Lecturers within the Faculty; their stipends are roughly equivalent to that of a Lecturer; they serve on all manner of boards; they have acted as Chairmen of Examiners; their appointments are subject to the full scrutiny of the Faculty Appointments Committee. All of a sudden this group of people found themselves stigmatized as being merely ‘academic-related’ on the grounds that they were not entitled to leave. I am not particularly surprised by this because it is all part and parcel of the steady downgrading of the status of teaching in this country, to the extent that it is now seen as tangential to the main business, which is research. I am not surprised because that is the direction in which those who fund us wish to drive us, but I am nevertheless somewhat disheartened to see the fervour with which many in this University have embraced such a philosophy. And problems like this are not limited to the Arts and Humanities. I believe I am correct in saying that some years ago the Department of Chemistry requested that a group known as Teaching Fellows be given University Teaching Officer status. This was vetoed because a UTO whose duties did not include research was thought unimaginable. The parallel is not exact, of course, but the underlying problem is the same. Those who devote themselves to teaching and thereby give the rest of us time for research are treated as second-class citizens. Time and time again the Report talks of ‘teaching and research’ as the marker of an ‘academic’ as if they were indivisible. But yoking these two activities together in this way is problematic. ‘Research’ on its own is said to be academic; ‘teaching and research’ is said to be academic; but ‘teaching’ is not. In the light of future discussions about the raising of tuition fees, this worries me.
Now we find this same boundary line being used to distinguish between various kinds of disciplinary and redundancy procedures. Paragraph 11 of the Report states: ‘The officers directly responsible for the fulfilment of the University’s academic purpose are those in Schedule J.’ I cannot imagine a greater slap in the face for those who devote themselves to teaching our students the basics. Schedule J is all very well if it is restricted to what it was designed for, but when its remit is extended in this fashion it creates unhappiness and division. I would hope that when it comes to a vote, members of the Regent House will see fit to reject the constant pushing of this boundary into areas in which it is entirely inappropriate.
Professor A. C. Minson:
Mr Deputy Vice-Chancellor, I welcome this Report. It deals with two aspects of employment practice in the University which I believe to be unsatisfactory at present.
The first relates to current procedures for dealing with grievances and discipline. At present our procedures deal with different categories of staff in entirely different ways; this is not reasonable or fair. Equally important, current procedures are slow and arcane. Grievance and dispute cases drag on for many months, and more often years, causing great distress to those directly involved and poisoning the working environment for others. The proposals in this Report describe procedures that are more uniform for all grades of staff, are designed to achieve resolution more promptly, and provide greater opportunity for resolution by mediation and conciliation. These seem to me to be timely improvements to our current slow and highly legalistic processes, though I note the matters of detail suggested by Professor Ibbetson.
The second aspect concerns redundancy and proposed changes to current arrangements where votes of Regent House are required to make the holder of any University office redundant. We should be clear that redundancy does not involve value judgements on quality of work or professional competence – these are disciplinary matters. Redundancy requires a decision that an activity or role is no longer necessary or relevant, and under these circumstances an employee may be made redundant, though opportunities for alternative employment and training must be available. The safeguards provided by current arrangements have a long history and the purpose is clear; namely that Regent House, acting on behalf of the University as a whole, should decide whether a particular academic activity should or should not be pursued. The academic endeavours of individuals or groups should not be threatened by political or religious prejudice, nor by personal conflicts, and the academic direction taken by the University should not be swayed by knee-jerk response to fashion. These are matters of academic freedom and the academic priorities of the University, and it is right that they should be subject to scrutiny and agreement by Regent House. But the relevant groups of staff to whom these arrangements pertain should surely be University Teaching Offices and those others who carry the responsibility for the academic programmes of the University. It is not clear to me that this includes all administrative officers and other support staff who happen to hold an ‘office’. This is not to undervalue these groups of staff. They are critical to the success of the University, as are other support staff who do not fall into the ‘officer’ category. But to include all ‘officer’ support staff in the safeguards provided by Statute U in respect of redundancy is to misunderstand the purpose of those safeguards and to devalue their underlying ethos.
Mr B. W. Towse:
Mr Deputy Vice-Chancellor, Members of the Regent House, I am an undergraduate student. I came to Cambridge as an undergraduate nearly two-and-a-half years ago now because of a very specific idea I had about what a university was for. I have kept that ideal through my studies and it is for the same reason that I now wish to pursue a career in academia, as you have done.
The idea of what a university is to me is a community dedicated to knowledge and scholarship and its furtherance for its own sake, and potentially at the cost of external objections, at the cost of political pressure, public or media condemnation, or financial comfort. A university should teach and research things which might not be profitable, might not be popular, but are worth teaching and researching for their own sake. And the University exists, as it always has, in a world often hostile to this goal. It is not necessary to doubt the intent or the motives or the good faith of the proposers of these changes or of the management who would gain the powers given by them, to recognize the danger of giving these powers. External pressures – public, political, or financial – can always force the hand of people given powers, even if they do not wish to use them, and it should always be remembered as well that management and its character can change. If we trust the management today, who knows who we will have in ten or twenty years and what they will do with these powers.
Academic freedom is central to that vision of what a university should be, and it has to be extended to anyone engaged in enquiry and teaching. The idea that we should trust the General Board to give those powers, to give those protections afforded to Schedule J officers to non-Schedule J officers on an appropriate case by case basis is laughable, because if someone is at risk of being fired for reasons which run contrary to academic freedom by those in power in the University, do we really trust those in power in the University to turn around and say ‘Oh yes, we recognize that this is a matter of academic freedom, and we will now give you those protections’. No. That’s not something that we should trust anyone in power to do, no matter how much we like them. It defeats the whole point of protecting freedom if you make that freedom conditional on the consent of those who you wish to protect us from.
And the matter of these proposals making redundancies easier, which they undoubtedly do. Some of those reasons – that redundancies are difficult to make or that procedures are long or complex – might be valid, but undoubtedly they do make redundancies easier. And the threat of Department downsizing and closure. Here and elsewhere, in the current climate, it is pretty clear that this is a real risk that has happened in recent times, sometimes successfully, as with Sanskrit, and sometimes unsuccessfully, as with the Department of Architecture’s undergraduate provisions and with the teaching of Portuguese in MML.
Especially with the rise of a culture which demands quantifiable achievements from academia at every turn – an obsession with impact factors and a potential for commercialization of research – these pressures will always be present. We cannot simply put trust in the people in power, that we give the power to close Departments or downsize them, some sort of faith that they will always resist such pressures and that bad things will not happen to Departments, because they already have.
You don’t need to reject the idea that some change might be due, and you don’t need to want to cling, as one speaker put it earlier, ‘to the devil we know’, to believe that the specific proposals on the table here are not acceptable. They have the potential to cause massive harm to the character and academic pursuits of this University, to the well-being and employment conditions (or otherwise) of staff, and to the quality and nature of the education offered to students like me.
Ms G. Cantelli (read by Mr B. W. Towse):
Mr Deputy Vice-Chancellor, the proposed changes, particularly to Statute U, are dangerous for current and future staff and students. They would make it easier for the University management to close courses, Departments, etc. and to make cutbacks in staffing.
This is not a benign change – particularly in a recession, management are likely to cut anything but their own salary. The University and College Union (UCU) has identified thousands of at-risk jobs around the country. Leeds and Edinburgh are just two universities that have seen anti-cuts campaigns by staff and students, as have some London institutions (e.g. London Metropolitan University). Birmingham is in danger of losing its entire Sociology Department.
Given this information, staff must be ready to defend their jobs and each other, and students will have to watch out for course cuts. Cambridge is not immune to this – we have seen attempted cuts in specialist subjects within the last few years.
Staff and students should not sleepwalk into future cutbacks. We stand behind our staff for job security and our fellow students for continued high quality education, even in less popular courses.
This is a statement from Cambridge Education Not For Sale.
Mr N. M. Maclaren:
Mr Deputy Vice-Chancellor, in previous responses, many of us pointed out factually erroneous statements and demonstrable miscomprehensions in the green and white papers; this Report has repeated many of them and added new ones. I shall refer to only a few here.
As I said in the Discussion of 3 February: ‘I am not one who denies that this area needs attention.’ I have some experience of that. It is unfortunate that these proposals are almost certain to make the existing failures of procedure more likely rather than less, to reduce still further the likelihood that such failures will be properly investigated, and even to increase the likelihood of serious ones reaching the courts.
Paragraph 12 of the Report says ‘the need to protect free enquiry, which underpins the protection of academic tenure, does not appertain in the case of non-Schedule J officers any more than it may in any employment generally.’ That is offensive to the academic-related officers who are acknowledged national or international experts in academic fields, and whose roles include internal and external consultancy, teaching, and research.
Paragraph 35(b) is as bad. I said in the Discussion, ‘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.’
The Council and General Board have not offered officers any substantive protection from retaliation if they report cases of mere gross misconduct on the part of their superiors, especially if the officer’s ‘responsible person’ has any involvement. Consider one example, which I have known happen to several people. An officer’s superior instructs the officer to commit an act of gross misconduct, which does not involve breaking the law, and refuses to put that instruction in writing when asked to. How would the disciplinary process handle that?
Whether the officer complied or refused, he would risk disciplinary action; his defence would have to rely on his word against his superior’s, and he would quite likely not be believed. But let us say that the facts came out, and could be proved – would the superior then face action for gross misconduct? According to the proposed guidance, clearly not, because neither issuing a grossly improper instruction nor refusing to put one in writing are classified as gross misconduct.
Let us now move onto issues where the actual law of the land is involved. The Report, under Academic freedom, section 34 says ‘It is considered that section 202 of the Act is technically spent, and further that there is no rule of law that inhibits the University determining, by amendment of its Statutes, the ambit of the academic freedom provision. However it must be emphasized that there is in fact no proposal to alter the current ambit in any way.’ The last sentence is demonstrably false, as the proposed Code of Practice adds the qualification ‘within the University’ to the existing words.
The Education Reform Act 1988 paragraph 202(2)(a) says ‘to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions’. That requirement cannot reasonably be interpreted as applying solely within the University. But let us also look at what Parliament meant when it passed the Act.
On 19 July 1988, Mr Jackson, speaking for the Government in the House of Commons, said ‘The third aspect is that of the freedom of individual academics from unwarranted pressure from their colleagues and seniors in the universities and colleges – the subject of this amendment.’ A little later, on the same topic, he said ‘Following the same line of thought, during the passage of the Bill the Government concluded that it was also necessary to provide enhanced protection for academics from pressures short of dismissal. Hence our amendment in another place to ensure that an independent grievance procedure is available.’ ‘Unwarranted pressure from their colleagues and seniors’ is precisely the issue being debated today.
It also says an ‘independent grievance procedure’. Consider the case when the grievance involves actions of some of the senior committees of the University, or even the Council itself. To keep it simple, consider just the appeal stages. For disciplinary action, that is a committee chosen by the Secretary of the Council from panels chosen by the Council; for grievances, that is the Human Resources Committee; and there is some scope for appeal from those to the Vice-Chancellor. There is an impressive overlap between the membership of the Council and the General Board, the Human Resources Committee is a joint subcommittee of the Council and General Board, and the Vice-Chancellor is chairman of both. Do the Council really think that they could uphold their claim of an independent procedure in court, if its validity was challenged by such an academic?
I shall close this topic with a question, to which I hope that the proponents of this Report will respond. If an officer had reason to raise a grievance where the Council, as a body, was one of the subjects of his grievance, exactly how would this proposed procedure handle the matter?
My final point is the matter of implicit changes of conditions of employment. In the anonymous briefing note entitled ‘Statute U: Questions and Answers’, Q7 says ‘The contracts of employment of University officers provide that their appointment is subject to the Statutes and Ordinances of the University as may be modified from time to time.’ Paragraph 4 of mine is the relevant one, and says, in full, ‘You should consult the Head of your Department, Professor R. M. Needham, about any special Ordinances relating to your appointment, or particular definition of your duties. General conditions relating to leave of absence are set out in Statutes, and certain supplementary conditions about residence and leave of absence are set out in Ordinances. No other conditions relating to hours of work are laid down.’
Over the years, I have sought some advice and done some research, and those indicate that our position as officers is not as weak as that note implies, even for those people on new contracts. For reasons I need not go into, it became necessary twenty years ago for me to take the position that I would accept no further unilateral, detrimental changes in my conditions of employment, where not required to by the law of the land. Let me just say that I shall continue to do that, on this matter as on many others.
Dr Holmes said in the Discussion ‘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.’ He was right to be concerned.
I quoted my contract above. Let me now quote from a message that I was sent by a superior. ‘In an attempt to make the situation clear to all, and avoid unfairness and misunderstandings in the future, the Senior Management Team have agreed the following policy: ... If members of staff are unable to get to work, but have the means to work from home, then they can contact their managers and ask for permission to work at home for the day, if they so wish.’
Dr S. Mukherji (read by Mr N. M. Maclaren):
Mr Deputy Vice-Chancellor, this is to express my concern about the University’s proposed new policies regarding dismissal and redundancy. If these proposals are implemented, the self-governance of the University as an academic community will be seriously compromised, and the intellectual culture will be replaced by a corporate one. The criteria for redundancy and dismissal will be far from equitable and democratic, if the proposal is adopted, and we would be acting on a damagingly short-term economic outlook. It will be a backward step, not a progressive one. I am sure I am not alone in feeling disturbed by this Report.
Mr M. B. Beckles (read by Mr N. M. Maclaren):
Mr Deputy Vice-Chancellor, my name is Bruce Beckles. I am employed within the University Computing Service (UCS) in an academic-related post. I am aware that many feel the recommendations of the Joint Report under discussion are, taken as a whole, at best, ill-advised. I agree. In particular, I feel that the issues highlighted by the dissenting members of Council (in this Discussion and in other fora) are sufficiently serious that the recommendations should not be accepted wholesale, as is currently proposed.
I also agree with my colleague Julian King that, if indeed our terms of employment are to be made worse, we should be compensated for this in some manner. I believe most people would agree that it is possible to attract and retain excellent staff on lower salaries if the conditions of employment for those staff are otherwise good. Consequently, if the University wishes to remain a world-class institution, we need to ensure that we can still attract and retain excellent staff. It is difficult to see how we can do this if we’ve made the conditions of employment for staff worse but have not compensated those staff in some other manner. And yet this is exactly what this Joint Report proposes.
My contribution to this Discussion is, I hope, to clarify the rather curious document produced by the working party responsible for this Report, entitled ‘Statute U: Questions and Answers’,1 that was circulated to members of Council and the General Board, Chairs of Faculty Boards, heads of institutions, etc. I say ‘curious’ for two reasons. Firstly, although it purports to be a series of ‘Questions and Answers’ a number of the so-called ‘Questions’ are actually statements. Secondly, those which are actually questions are all questions that can be answered ‘yes’ or ‘no’, but whose answers are rather long-winded and inconclusive.
I assume that the fact this document is somewhat lacking in clarity is due to the immense workload under which I’m sure the working party were labouring. As a gesture of goodwill, I am therefore attempting to improve the situation by providing simple answers to these ‘questions’ in language we can all understand:
Q1: Does the rewrite of the Statute have to be so complicated? Could not the Working Party come up with something simpler?
No, it doesn’t, and yes, they could.
Q2: Surely this is levelling down, when we should be levelling up?
Yes, it is, and yes, we should.
Q3: The Chairman of the Board of Scrutiny has said that these proposals will undermine academic freedom.
Yes, that is correct – the Chairman did indeed say that.
Q4: The Joint Report facilitates the dismissal and removal of University officers.
Yes, it does.
Q5: Are these changes legally necessary?
No, they aren’t.
Q6: It would be better for the new proposals to await the new Vice-Chancellor’s arrival.
Maybe. (It would be better for them to be reconsidered, and if that means postponing until the new Vice-Chancellor arrives, so be it.)
Q7: Do the proposals represent a change that unlawfully alters the terms and conditions of employment of University officers?
Yes, they do for some staff.
Q8: Is it right for the University to restrict mediators to persons selected by the Registrary from an approved panel appointed by the Council?
No, it isn’t (cf. what the Faculty Board of Law had to say about the composition of Appeal Panels in their response to the white paper on Statute U).2
1Kindly made available by Dr Cowley at
Mr J. C. Wills (read by Mr D. J. Goode):
Mr Deputy Vice-Chancellor, we understand that the gravity of this Discussion means that the comments of University officers will hold more weight than those of students at the back of the room. However, we feel that, considering the possibility of extremely detrimental effects to the quality of students’ education, our hands and voices should not be ignored. Many of us represent, in our official capacity, large bodies of students, and I would therefore like to acquaint members of the Regent House with the resolution of my constituents.
King’s College Student Union decided at an Extraordinary open meeting last night to oppose the proposed changes to Statute U. We understand that there are issues with current procedures within the Statute, but we refute the claim that attempts to rectify them must come at the expense of staff job security.
Considering the cuts going on in Higher Education throughout the country, and the probability of funding deficits in Cambridge University, we stand against proposals that would make mass redundancies and downsizing significantly easier; instead of pre-emptively capitulating to expected funding cuts and preparing to lay off staff, the University should be campaigning alongside students and academics to resist them.
We hope that students’ voices are heeded, and affirm our belief that with a united student and worker body we can protect our jobs, education, and welfare, and avert any cuts that may be proposed in the future.
Mr D. J. Goode:
Mr Deputy Vice-Chancellor, I speak today as President of the Cambridge University and College Union (Cambridge UCU).
There is no doubt that today is the single most important Discussion of the Regent House for some time. The Joint Report of the Council and the General Board on disciplinary, dismissal, and grievance procedures (hereinafter, the Joint Report) proposes significant changes to the terms and conditions of the holders of University offices, changes the like of which may probably not have been seen since the Education Reform Act of 1988 and the Statutory changes in the University which came about as a result thereof.
Let me say from the outset of this contribution that neither Cambridge UCU nor UCU nationally is opposed to change per se. The UCU is a progressive body, and progress inevitably means change. The UCU is a campaigning body, and for what other end would a body campaign than for change? And there is no doubt that change is needed in many of the procedures currently covered by Statute U, particularly in introducing effective mediation to the grievance procedure.
But there is more than one kind of change, Mr Deputy Vice-Chancellor. Change can be good, for the better, and greeted with enthusiasm and joy. Change can be neutral, and greeted with a Gallic shrug and a ‘Plus ça change...’. And change can be bad, for the worse, and greeted with horror and opposition.
In these remarks, I shall go through each of the processes where change is proposed by the Joint Report. Not in myopic detail, you will be relieved to hear, but using Annex E, which gives a sort of ‘before and after’ summary of the proposed changes. And, in the interests of fairness, I shall rigorously apply the same criterion to each process, which is to evaluate the proposed change on the one hand against the status quo on the other. Or, to put it another way, I shall look at the ‘before and after’ for each process with one simple aim: to determine whether the terms and conditions of the holders of University offices will, as a result of each proposed change, be better, the same, or worse.
But before I begin, I want to put the proposals in to context. The financial prospect for higher education in the UK is looking very bleak and several Russell Group universities and other institutions have already revealed plans to make cost savings by ‘restructuring’. John Morgan writes in the current Times Higher Education:
‘A total of 377 jobs could be cut at the University of Bristol and Manchester Metropolitan University after they became the latest institutions to address the “severe pressures” forecast on government funding.
‘The announcements came in a week of cutbacks and unrest across the sector. The University of Birmingham is considering closing its sociology department; Bath Spa University is set to close its international activities department...
‘At University of the Arts London, staff and students protested against the loss of 16 courses and 37 staff at the London College of Communication site.
‘Bristol said it must cut 250 jobs, about 5 per cent of its total posts, by 2011–12 and find annual savings of £15 million.
‘Manchester Met, which employs about 4,200 people, is to reduce staffing across a number of support areas “by potentially 127 posts...”’1
There is a very real prospect that this University will find itself in a similar position in the near future. And there is an important question to ask here, which is this: ‘Is it a coincidence to see these proposals for reform of Statute U – which streamline and simplify the process for dismissing holders of a University office, particularly dismissal by redundancy – coming at this time?’
One more bit of context is required before we start. Local context, this time. We need to pause briefly and look at the difference between the Septemviri – who are the current hearers of appeals in most cases covered by Statute U2 – and the appeal committees proposed in the Joint Report, because comparisons between the two will be a familiar theme as we work through the proposals. The Septemviri is a court of appeal. The Septemviri are appointed by Grace of the Regent House3 and there are, rather obviously, seven of them, the presence of five of whom is required for a quorate decision.4 The proposed appeal committees will be made up of three persons chosen from ‘standing panels’.5 But who appoints these proposed standing panels? Are they appointed by Grace of the Regent House? No, these standing panels consist of persons appointed by the Council.6
And now to the processes and the proposed changes, and the criterion to apply to each, which is the straightforward question: ‘Will the terms and conditions of the holders of a University office, as a result of this proposed change, be better, the same, or worse?’
The major proposed change is to have a hearing by a committee of three persons selected from standing panels, and a possible appeal heard by a committee of three persons selected from standing panels. Or, in other words, a University officer would no longer have the right to be tried by the University Tribunal using a process prescribed by Ordinances authorized by Grace of the Regent House, with appeal to the Septemviri appointed by Grace of the Regent House, but to trial by three persons chosen from standing panels appointed by the Council, and appeal to, er, three persons chosen from standing panels appointed by the Council.
It seems that the terms and conditions of the holders of all University offices will, as a result of this proposed change, be worse.
Currently, a complaint is considered by competent authority, with reference to a Medical Board, and appeal to the Septemviri. The proposed changes are to replace the Medical Board of three persons – one member of which is appointed by the University officer concerned9 – with a medical committee of three persons chosen from standing panels appointed by the Council, and to replace the appeal to the Septemviri with appeal to a committee of three persons chosen from standing panels appointed by the Council.
It seems that the terms and conditions of the holders of all University offices will, as a result of this proposed change, also be worse.
Currently, there must be a decision by the Regent House to make redundancies, selection for redundancy by a Redundancy Committee of five persons, approval of that selection by the Regent House, and appeal to the Septemviri. The proposals require a decision by the Regent House to make redundancies for offices listed in Schedule J, selection by the General Board, and appeal to a committee of three persons chosen from standing panels appointed by the Council. Where the dismissal is of an officer whose office is not listed in Schedule J, the first step of the proposal, approval of the Regent House, would not be required.
There is no doubt that the proposals in the Joint Report significantly ease the process of dismissing a University officer by redundancy. Seen in the context I mentioned earlier of the parlous state of higher education funding for at the very least the near future – and regardless of who wins the next general election – this is the most dangerous proposal of them all. And the danger is by no means just for academic-related officers, but for academic officers, too. Only the proposed first step is different for academic and academic-related officers: the rest of the procedure for dismissal is common to both.
It seems that the terms and conditions of the holders of all University offices, academic and academic-related, will, as a result of this proposed change, be worse.
The current procedure is for reference to head of institution, reference to the Vice-Chancellor, reference to a Grievance Committee of three persons appointed by the Council. The proposed procedure starts with the same first step, then goes to possible mediation, and reference to one or more persons appointed by the Human Resources Committee.
Of course, Cambridge UCU welcomes the introduction of mediation into the procedure, but it is very difficult to see removing reference to the Vice-Chancellor, and referring a grievance to one or more persons appointed by the Human Resources Committee rather than to a Grievance Committee, is anything other than a worsening of the terms and conditions of the holders of University offices.
As with many of the other proposals, the real change proposed here is again to the appeal procedure, which would now be made not to the Septemviri as currently but to a committee of three persons chosen from standing panels appointed by the Council.
And as with the other proposals, it seems that the terms and conditions of the holders of all University offices, academic and academic-related, will, as a result of this proposed change, be worse.
I apologise if this has seemed rather tedious, but lurking in the luscious long grass of the detail, with all its talk of fairness, and modern practice, and harmonization, and balance, and proportion, lies the devilish truth, which is that these proposals make it much easier to dismiss the holders of a University office for a number of reasons, particularly dismissal by redundancy. On close analysis, not one of these proposals is found to make the terms and conditions of the holders of a University office better. Not one of the proposals is found to be even neutral in its effect. They are detrimental to our terms and conditions. They are detrimental to our future. They damage morale in the University. And none of these things make for a happy University.
So, Mr Deputy Vice-Chancellor, I urge Council and the General Board to use its response to the remarks made in this Discussion to announce the abandonment of the proposals contained in this Joint Report.
1Times Higher Education, 19 November 2009. See http://tinyurl.com/yhblvz9
2Statute U, V, 3 (Statutes and Ordinances, p. 82).
5Joint Report, Annex B, proposed Ordinance XI, 4.
9Statute U, IV, 5(c) (Statutes and Ordinances, p. 81).
12See http://tinyurl.com/ykbpg5e for arrangements for academic offices and equivalent unestablished posts, and http://tinyurl.com/yfnhz2g for arrangements for academic related offices and equivalent unestablished posts.
Mrs J. L. Horsley:
Mr Deputy Vice-Chancellor, I have no problem with the revised proposals concerning grievance and dismissal. These seem suitably appropriate and streamlined for modern business and employment practices and are necessary inasmuch as these processes have not existed previously for officers.
I also agree with the removal of the current ‘second vote’ of the Regent House for officers as inappropriate and most likely illegal with regard to employment law and redundancy.
However with regard to the ‘first vote’ of the University to make a decision of redundancy, I still find that the University and working group have failed to think through what activities are important for the consideration of the University, i.e. the Regent House. The use of Schedule J to identify those offices (and therefore those activities) that are intrinsic to the academic purpose of the University and therefore deserving of University consideration is lazy and incomplete. It assumes that the Regent House would have no concern for the cessation of activities such as MISD, libraries, RSD, or the Counselling Service or any other activity that, according to the reasoning of the Report has no impact on academic purpose. For example, I think staff of all types who have made use of services such as the Counselling Service would take a great interest in cessation of the Counselling Service as an activity of the University regardless of what offices were held within that activity or whether they were directly responsible for teaching and research.
As it stands, the way I interpret the options presented in the Report, either (a) applying the University protection to Schedule J officers only or (b) to all officers, neither of these is satisfactory. One is too narrow and the other is too wide.
The University needs to assess and confirm what activities are important enough for the consideration of the University and not be restricted or blinded by the definitions of particular offices or officers.
Dr A. C. Aitchison:
Mr Deputy Vice-Chancellor, my name is Andrew Aitchison. I have been the Computer Officer for DPMMS (Pure Maths) for nearly thirteen years.
I am pleased to see evidence that the authors of the recent Report have noted the comments made in response to the white paper and thus the Report is less bad than the white paper. However I can’t tell you what I really feel about the Report, since I am unwilling to use what Westminster calls ‘unparliamentary language’.
I believe that this proposal, if enacted, will make the University a less good employer, put an unproductive division between academic and academic-related staff, and dilute our academic freedom, so I wanted to be able to stand here and tell you how to make the proposal work better for the interests of the University.
I struggled for ages, in the end the best improvement came to me: drop the proposal and stick with what we already have. Maybe that can be improved further, but to my mind that is a better starting point than the current proposal.
Thus the most constructive thing I can say to the authors of the proposal is ‘non placet’.
Professor S. C. Franklin (read by Revd. J. L. Caddick):
Mr Deputy Vice-Chancellor, I have, it seems, a conflict of interests. I am a member of the General Board, and a member of UCU. In the former capacity I am among the signatories to the Report. In the latter capacity I have received a circular email from the local president encouraging me to help ‘show the central bodies how unpopular these proposals are’. According to the president’s circular, one of the main faults of the Report is that it is not really about what it says it is about. Specifically, it ‘puts up a smokescreen to hide [the presumed ‘critical’ matter of redundancy and discipline] with lots of detailed discussion about harmonization and grievance procedures.’ Thus, with a metaphorical flourish (‘puts up a smokescreen’), the circular manages to trivialize a central issue, to condescend to all sides in a potential debate, and to invalidate the genuine distress of those caught up in the University’s current grievance procedures. A large part of the Report deals with grievance procedures because that is a large part of what the Report is – quite properly – about. As far as I, as a co-signatory, am concerned, the sections on grievance procedures are there not as a ‘smokescreen’ but because they are important. I would expect them to be important to the president of my union as well.
What the president regards as ‘important’, according to the circular, is ‘to note that the proposals downgrade the terms and conditions of employment of all University officers’. This is nonsense, unless one really believes that the virtue of employment procedures is measured according to the extent to which they enshrine proceduralization to the point of atrophy. If this is the goal, then the current procedures are, indeed, close to Nirvana. However, our present procedures are not merely long-winded and inconvenient (a system does not have to be optimal in order to be workable). Their unwieldiness can be a cause of considerable additional stress and distress to both sides in what is likely to be already, by nature, an unpleasant situation. Indeed, I am sure many of us have come across cases in which colleagues have felt unwilling to give voice to a potentially legitimate grievance because they feel intimidated by, or have no confidence in, the procedures. Of course we should all be wary of any move towards blatant managerialism. All of us need protecting against the arbitrary exercise of authority. But that’s really not the problem here. We need procedures which are accessible, fair, and proportionate.
These are matters of opinion. There will be many opinions. Whatever the outcome of the Discussion, I very much hope that colleagues will decide on the merits of the issues, not on the basis of rhetorical assertions and undocumented imputations of bad faith.
Dr M. R. Manning (read by Dr M. R. Clark):
Mr Deputy Vice-Chancellor, I have worked for the University and Colleges for 25 years, and in earlier years, the University took pride in being a ‘good employer’ and going beyond the minimum legal requirements. And it still is a good employer in many ways; equality, for example, seems to have been taken very seriously in recent years.
It is therefore rather sad to see that many staff will be reduced to relying on the legal minimum of ‘general employment law’ (as the Q&A puts it) rather than having rights under Statute.
Aggrieved staff can of course take their cases to law. But many will simply not have the energy and emotional reserves to do this; and many others, very likely because they have mortgages and families to support, will simply prioritize having a job over defending their rights.
This loss of statutory protection for staff is not a win for the University: it is its loss. When employees feel aggrieved, they lose enthusiasm for their work, and find it harder to make the sacrifices that professionalism requires. I experienced this myself at the hands of the Pay and Grading process; I fear that many more will now experience it under the proposed change of Statute. And, I repeat, this will be a loss, not a gain, for the University.
Dr M. R. Clark:
Mr Deputy Vice-Chancellor, I speak here today as a member of Council, one of the six members of Council who signed the note of dissent attached to this Report, as a member of the Finance Committee who has thus seen the future financial strategies of the University, and also as the elected Vice-President of Cambridge UCU. Most importantly I speak as a member of Regent House who wishes to see the democratic governance of this University preserved as one of its great assets. When I stood for election to Council I made my views on governance, and particularly on Statute U, clear in my personal statement, and was pleased to accept the democratic decision of Regents in granting me the majority vote. As a member of the executive of Cambridge UCU I would normally welcome proposals that offered potential improvements to the grievance and disciplinary processes, but as the Cambridge UCU President Dave Goode has clearly described, almost every change of this Report represents a detrimental change in the terms of employment, and with no offer of any compensation in return for accepting these detrimental changes. Perhaps those who put forward this proposal are hoping that Regents will be turkeys who seem happy to greet the coming of Christmas?
During the progress of this Report I have tried to test the claims that these changes are necessitated in order to comply with national legislation and in order to deal with a substantial burden of cases underway in the University. Professor Forsythe has answered the first of the questions. Using the Freedom of Information Act I attempted to find out details of the numbers of cases that fell under Statute U for the previous five years (you can follow my request and the replies I received on the website http://www.whatdotheyknow.com/body/university_of_cambridge under the topic ‘Redundancy and Dismissal proceedings in recent years’). Briefly I was told that the University did not keep systematic records but that the collective recollection of the central administration was that numbers of such cases were low. Thus I was surprised that during the open consultation meetings (those same consultation meetings where a separate FOI request made by Bruce Beckles revealed that no notes were actually taken, which again you can see on the same website under the heading ‘Notes from open meetings on Changes to Statute U’), as well as in Council meetings, that the members of the working party made reference to thirty cases. On Council I raised this discrepancy, between the information being put out by the working party and the response I had received under the FOI Act, with the Vice-Chancellor, and she requested the Registrary to report back. What the Registrary subsequently revealed in answer was that a systematic database had been set up by HR after my FOI request and that this database had recorded that the number on the database had actually been twenty-nine (which had been rounded up to thirty for the use of the working party) but of those twenty-nine cases only six were recorded as University officers, and of the six cases it isn’t completely clear to me what provision of Statute U is involved for two of the recorded cases. So it would appear from these revelations that Council, the General Board, and Regent House were misled by the use of the figure thirty by members of the working party on Statute U. Earlier in this Discussion, Professor Brown made reference to the number of ‘a score’ of such cases currently underway. Well I have with me the letter that was sent to me by the Registrary and he gave a snapshot of the cases that were underway at a particular point in time (the cases underway between 1 August 2009 and 30 September 2009. I have just looked at the number of cases at that time, and I count the number three. That does not sound to me like ‘a score’. There were plenty of other cases – up to twenty-four – that did not fall under Statute U – because they were non-officers. Seeing that the vast majority of cases were of staff not covered by Statute U, and I believe when I hear reference by other members who have spoken today at the Discussion that they probably are referring to cases of staff not covered by Statute U, I asked the Registrary why it was that we were concentrating on what appeared to me on the evidence to be the smaller problem. I received a lengthy reply but buried within that reply was that the reforms to Statute U were needed for ‘the organizational need for greater flexibility, including staff restructuring’. Staff restructuring is of course the politically correct way of discussing redundancies. As I mentioned I am on the Finance Committee and I have seen the financial projections and planning guidance offered to Heads of Institutions by the Pro-Vice-Chancellor for Planning and Resources, and within that paperwork there is also mention of possible use of staff restructuring in order to reduce our projected deficit. So I am clear in my own mind that the purpose of this Report is to simplify the process for making redundancies amongst University offices. I recognize that this is something that may be necessary but it should be an absolute last resort and it should also be a matter for the governing body to be seriously engaged with. Our current Statute U does allow for redundancies to be declared and it does involve serious engagement with Regent House, the governing body of the University. The proposals seek to minimize, or even to eliminate for some classes of office, involvement of the governing body, Regent House, and hence I believe this seriously undermines our self governance. Regent House is involved in decisions about increasing staff funding and in creating officer posts, and also involved in approving the appointment and promotion of officers, therefore it seems perfectly appropriate for the governing body to be involved in the removal of offices and reductions in staff funding. To argue that a governing body should not be involved in decisions about reducing staff numbers is a strange principle to try to put forward. I also believe, just as the Chair of the Board of Scrutiny stated in their last Report to Regent House, that there is a serious threat to academic freedoms. We have been told that the references to academic freedoms remain unchanged in the new proposals. Well that on the face of it is true, but the reduction in the protection offered to officers with respect to removal from office, or for disciplinary procedures, means that pressure can be applied on individuals using these alternative provisions. Deputy Vice-Chancellor, this Report is in my opinion nothing more than a ‘Trojan Horse’, intended to gain acceptance for the associated detrimental changes to terms for redundancy and dismissal of University officers. As such I call upon Regents to reject the proposals in their current form in their entirety.
Dr N. Bampos:
Mr Deputy Vice-Chancellor, I come to this Discussion as a member of Council, the General Board, the Department of Chemistry, Senior Tutor of a Cambridge College, and also as a proud member of UCU. Wearing my various hats I have followed the development of the proposed revision of Statue U being considered by the Regent House and the Joint Report under Discussion. I signed the Report.
Many will question if there is a need for any changes to the Statutes. My personal view is that when those individuals charged with managing the day-to-day function of the University suggest that a ‘change’ is required to make the institution more flexible or more efficient, it is our duty to ensure that what they propose is workable and in the best interests of the University. We should of course assess such proposals with equal measure of trust in the abilities of the officers who formulate them, and suspicion as to how they may be used in the wrong hands. Let us therefore not forget that the Regent House is the final authority for implementing major statutory changes.
The document at the centre of this Discussion is certainly long, perhaps too long, but the revision of any policy or guidance document that attempts to cover every eventuality, to comply with law, and which endeavours to provide clarity of structures will inevitably be longer that its predecessor. Having seen this document evolve over the past year, I would not be happy with the fall-back position simply being to keep the current Statute U – the proposed revisions will better serve the University in the longer term, and most of the contentious points raised by others this afternoon I think can be addressed. What I was happy to see strengthened in the text is explicit acknowledgement of ‘academic freedom’ and the clarity regarding the grievance and disciplinary processes. I would argue that little has changed with regard to the protection of structures relating to established academic staff, and modifications to the original document over the past year have addressed my initial uneasiness. The one area where I share concerns raised by colleagues who have spoken this afternoon is in relation to the changes affecting unestablished academic, academic-related, and College staff – concerns that were so clearly covered by Professor Bowring earlier in the discussion. To say that the proposals under discussion can not be used to make anyone redundant would be naive. If the University did want to make individuals or groups of individuals redundant, then it would find a way to do so, and under the current structures my fear is that this might be achieved in a way that can cause distress to all involved parties. The proposals outlined in the document should provide a more transparent structure to help individuals involved in redundancy and anyone representing them. But having said this, I do not believe that the proposed revision of Statute U is designed to give the University the power and opportunity to engage in redundancy programmes.
Mr Deputy Vice-Chancellor, I accept and respect many of the views presented by my colleagues earlier, but I would like to look at this Joint Report in a very different way. What the proposals seek to address is the flexibility for the University to look at the activities we engage in and think more strategically about the structures that maintain our position as a world-class teaching and research institution. Another way to think about this is that we are too slow to respond to changes in teaching and research objectives, and failing in either of these areas will compromise our mission statement. Under the proposals outlined in this document, the University might seek to ‘restructure’ (a word I know terrifies many people) some activities from time to time to ensure that what we do, we do better than any other comparable institution by responding to changes in disciplines, research, and teaching. I do not believe that the University is embarking on the proposals with the intention of becoming an aggressive, nasty employer, and as much as the current financial situation should concern all of us with regard to possible cuts, we must keep in perspective the mechanisms that ensure that decisions need the support of the Regent House and that a large enough membership of the Regent House can trigger processes to scrutinize our decisions. Of greater concern is the ability of the University to demonstrate that in any proposed restructuring the staff involved can be re-deployed, re-trained, and mentored so that they can continue to enjoy the benefits of working in this world-class academic institution. Or, in the case of researchers working on externally funded short-term research projects, we should do our best to support and develop their careers so that they may be able to find permanent positions here or elsewhere – this is the area we should be looking at in more detail and which I believe we can improve significantly.
A great deal has been said during our discussion this afternoon, and much will no doubt be said in the coming weeks. Others have spoken more eloquently and in more detail about specific aspects of the proposed changes and their impact on staff that I have not covered. For my part, I do not speak this afternoon either in support of the revision of Statute U, or to condemn it, but merely to remind the Regent House that as part of the democratic process available to us, it is now up to the Regent House to consider the Joint Report more formally, to take into account the consultative process that has guided the authors to produce this document, to look at the detail and what it means for the University, and ultimately to decide its fate.
Professor A. D. Cliff:
Mr Deputy Vice-Chancellor, this is an important Discussion on a major governance topic. All the remarks made will be taken into account in the advice which the working party provides to the Council and the General Board.
Professor Brown noted in his introduction that, in framing the proposals now included in the Joint Report, 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 proportionate, and fairer in operation. The proposed new Statute D, I, A itself is appreciably shorter than Statute U, but must be read together with the proposed regulations for removal from office, discipline, and grievances. Taken together they represent a simplification of the corresponding provisions of Statutes B, VI and U. As far as possible, the new Statute and codes of practice, which require the approval of the Regent House by Grace, 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 modified to conform to ACAS best practice. A formal role has been given to mediation in dispute resolution, thus filling a hole in the current Statute U. If the changes in the Report are ultimately approved by the Regents, 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 briefly upon two points repeatedly made in this Discussion and elsewhere which misinterpret what is proposed in this Joint Report.
As noted by Professor Deakin in his remarks, the substance of the University’s power to dismiss for reasons other than redundancy is NOT altered by the proposed changes, and it remains more tightly circumscribed than general employment law requires. The changes proposed to disciplinary procedures are intended to provide a fair, proportionate, and timely process, with an appeal mechanism, and are not intended to facilitate dismissal or removal from office. As for redundancy, it has been suggested both in this Discussion and in an email circulation from the President of Cambridge UCU to all Cambridge UCU members that a key aim of the proposals is to make it easier for the University to make officers redundant in difficult economic times. This is has never been the intention, and Cambridge UCU are being disingenuous suggesting otherwise. The development of these proposals commenced at least three years before the economic sky fell in at the banks. The true situation is as follows. For officers in Schedule J (Professors, Readers, Senior Lecturers, and Lecturers of the University and others engaged in teaching and research), the current requirement that the University must determine by Grace that a redundancy situation exists is NOT changed in these proposals from those in the current Statute U. What is changed is the removal of this requirement for officers outside Schedule J. As other speakers have noted, that is because it is considered that special protection should be restricted to those with the primary function of teaching and research. Those whose work, although valuable, is not of that nature, will still enjoy the protection of general employment law. In addition, a Grace will no longer be required to endorse the selection of particular individuals for redundancy. The current position is that, following a decision of the University that a redundancy situation exists, the Regent House as a whole would have to decide which individual employees within a given Department, for example, should be made redundant. Professor Deakin has pointed out that, were this to happen the result could well be both impractical and unfair. The law requires that a redundancy selection be based on a range of factors in such a way as to strike a balance between the personal circumstances of the employees concerned and the needs of the organization, and that there should be consultation with the employees concerned and with their representatives. It is not easy to see how these processes could be conducted fairly or efficiently if decisions arrived at after the appropriate consultation were to be reviewed by the Regent House.
Nevertheless, the Joint Report accepts that there is a genuine difference of views in the University as to whether officers outside Schedule J should still continue to receive Regent House protection in redundancy situations and, in recognition of this, the Joint Report offers this decision to the University.
It has been argued that the proposals in the Joint Report will undermine academic freedom. This is not correct. As the Code of Practice makes clear, there is NO change proposed as compared with Statute U in the requirement that the University’s procedures must be construed to ensure that all University officers in Schedule J and non-Schedule J have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges.
Dr N. Holmes (read by Dr S. J. Cowley):
Mr Deputy Vice-Chancellor, the essence of what I have to say today is that this Report should not be approved, even if some of its detailed deficiencies are attended to, because its whole thrust is in the wrong direction. As an exercise in futility, there may be few more egregious examples than trying to change the direction of a large administrative body. Nevertheless, I strongly urge the Council to draw back from the brink and rethink these proposals starting with the aim of retaining Statute U and building on it by incorporating the good things in this Report. And there are good things. This Report is a considerable improvement on the white paper. The proposals for mediation are sensible, even if some of the details need further attention.
It is claimed that the protection of academic freedom will be undiminished. This is not so. If you believe that all that is necessary to protect academic freedom is to state that it is protected and define what it means, then the argument would hold up. By that notion, all citizens of signatories to UN conventions should enjoy the rights and protections enshrined therein; torture should never happen. But it does. Freedoms are only really enjoyed where there are effective means to prevent their infringement.
I ask each member of Regent House to try and put themselves in the position of having to defend themselves at a disciplinary hearing on an issue they believe to be a reasonable exercise of their academic freedom, but which authority alleges constitutes serious misconduct. Do you feel you would get a fairer hearing from
1. a panel of five, chaired by a legally qualified member of the University with four members of Regent House, chosen from a possible ten by lot;
2. a committee of three selected by the then Registrary (or an Assistant Registrary, see footnote 9) comprising any mix from two panels, one appointed from members of Regent House, the other ‘persons independent of the University’?
In paragraph 32, the Report explicitly rejects the suggestion that first instance tribunals need be independent; only requiring an absence of conflict of interest. I strongly assert that such tribunals should be both independent of the administrative authority and competent to judge the matters at issue. Independence in appeal committees is considered by the Report to be satisfied if one member does not hold a position in the University or a College. This is a poor substitute for the Septemviri whose wisdom only the Vice-Chancellor will be able to rely on in similar circumstances (though as a court of first instance).
I have attended an appeal against dismissal of an unestablished member of staff, carried out essentially according to the procedure proposed. The balance of representation was weighted against the appellant and the three-person committee, while courteous and punctilious in matters of procedure, did not give me confidence that the issue was going to be tested rigorously. The appellant lost. He subsequently launched an Employment Tribunal claim for unfair dismissal.
This brings me to another point. I suggest that there have been a number of appeals against dismissal of unestablished or assistant staff in the past five years but that none have succeeded. I also believe that a substantial proportion of these unsuccessful appeals have led to the University paying financial compensation to the appellant at a later date to avoid fighting an Employment Tribunal case. I ask the Council directly now, please tell the Regent House the answers to the following questions in your reply to this Discussion.
Since 2004, for all categories of staff:
a) how many appeals against dismissal have been heard?
b) how many of these appeals have succeeded?
c) how many post-dismissal compensation settlements have been reached?
d) how many settlements were subject to confidentiality agreements?
Repeatedly the Report refers to a general approach of removing unnecessary prescription in Statutes, however the necessity is subjective is it not? For my part I think that the procedural framework should be in Statutes. It should not be considered desirable to continually tinker with the outline of procedures leading to dismissal. I note that the composition of tribunals to consider complaints against or appeals from the Vice-Chancellor is considered necessary to specify in Statutes. Furthermore, despite this repetition about Statutes, much of the detail deemed unnecessary could have been transferred to the new Ordinances but is actually replaced with other detail, often with no justification.
Annex B, Regulations 24–31 deal with redundancy. Here it seems to me that detail has been unnecessarily left out of Ordinances. The Statutes require the University to decide upon suppression of a Department, Faculty, or School or (in the proposed version) that a particular activity should cease or be diminished. Proposed Regulation 30 requires a Report to the University to propose granting the necessary authority for a redundancy situation. How far the Report need constrain the exercise of this authority in extent of numbers and scope of activities is not made clear. At least Statute U, II does not give carte blanche to the redundancy committee and competent authority. Here to appeal to the Septemviri is deemed ‘unnecessary prescription’ and ten days enough to prepare such an appeal rather than twenty-eight.
One point of detail here. The proposed Statute D, IA, 2 uses the wording of the Employment Rights Act 1996 section 139. However, in the context of the University it is inappropriate for place to be mentioned in this Statute. It is not mentioned in the present Statute U, II. I think no reasonable member of Regent House would consider the relocation of a Department, say from New Museums Site to West Cambridge, to be a fair reason, in itself, for making any employee redundant and it is probably not compatible with the employer’s general duty to seek to avoid redundancies. I think we can take it that the University of Cambridge is never going to be located anywhere other than this city – at least hopefully not without further Reports!
There is not time here to mention all the detailed problems which I perceive with the proposed Statutes, Ordinances, Codes, and guidance. I will mention two further matters only.
Regulation 2 in Chapter XI of Ordinances proposes that the responsible person may delegate any duty under these regulations etc. .. to any person (my emphasis). Surely there should be some limit to the power to delegate?
One aspect of the Report which I consider is distinctly less satisfactory than the white paper proposals is the decision to make examples of acts of gross misconduct Council guidance rather than part of the Code of Practice. It is true that the wording in the white paper was criticized as too widely drawn and not only by me. The Faculty Board of Classics commented
there is nothing to indicate in the wording of the examples themselves – some of them are distinctly grey areas – that the behaviour cited has to be in any way ‘gross’ or excessive. Instead they read like a charter for officious persecution by authorities wishing to get rid of someone whose presence they find inconvenient
The change of wording has not in my view eliminated the problems. The absence of requirement for approval by the University is undesirable. If the Council are convinced that it is essential to have some examples of acts of gross misconduct, then they should be much more clearly defined, clearly and unambiguously gross and contained in Ordinances.
To sum up then, I most strongly urge the Council to completely rethink its approach. In approaching harmonization we should be levelling up not down. The present Statute U has considerable merit. Its statutory strictures were considered, less than twenty years ago, important to defend academic freedom. Despite claims in the Report that legislative changes have rendered such special protection unnecessary, I do not believe that in practice anything has changed. If the University unfairly dismisses you, your only redress is still likely to be a few thousand pounds. Statute U should be a platform to improve our procedures through appropriate amendment.
Dr C. A. Tout (read by Dr S. J. Cowley):
Mr Deputy Vice-Chancellor, I speak as one who values the academic freedom that still forms the corner-stone of this University. Throughout the consultation process on these procedures I have never been convinced of the need for such major changes. The current system is adequate while being relatively immune to the exercise of power by a limited number of individuals.
I would prefer the status quo because, while I welcome the concessions that the Council and General Board have made following discussion, there is still room for improvement. For instance, I would draw your attention to the extremely detrimental, and very probably inequitable, reduction to ten days of the time given to appeal following a notice of termination of office. Many of those engaged in research travel overseas for periods of a month or more (as I am at the moment), in a few cases entirely cut off from contact with home. For this reason the period given to appeal should be at least twenty-eight days.
Dr P. Gopal (read by Dr S. J. Cowley):
Mr Deputy Vice-Chancellor, it is a matter of regret that the University, in its 800th year, when it should be celebrating and strengthening academic freedom, is proposing several regressive steps in relation to self-governance and working conditions for both academic and academic-related staff. Rather than aiming for the highest standards, these steps aim to provide far weaker conditions for all staff. While some changes, such as the improvements in the grievance procedures are to be welcomed, the current proposals indicate that both dismissal and redundancy will be made much easier and based on far less rigorous criteria than have been in place so far. These are manifest threats to self-governance, a corner-stone of a strong university, as well as academic freedom and standards. They signal an erosion of the robust procedures and protections which guard a vibrant intellectual environment. Freedom of expression is under clear threat and we must not allow this under any circumstances. The distinction that is made between ‘freedom of enquiry’ and ‘freedom of expression’ (paragraph 10 on page 132) is specious and would be considered untenable in any serious scholarly discussion. I urge colleagues to not to support the proposed revisions to Statute U.
Dr S. J. Cowley:
Mr Deputy Vice-Chancellor, my declarations. I am an officer listed in Schedule J, and I am teetotal. My wife is an officer (actually a Secretary of a School) who is not listed in Schedule J.
I am one of the members of Council who signed the dissenting note. As a member of Council I am one of the Trustees of the University, and as such I accept that I am obliged to do what is in the best interests of the University even if, as an employee, I am disadvantaged. I hope to convince you that my opposition to parts of this Report is principled rather than self-interested, although I accept that it is difficult to keep that Chinese Wall impermeable.
It may help if I outline what I consider to be the primary drivers behind this Report.
First, for a number of Heads of Departments, Heads of School, etc. there is a desire for ‘improved’ ways of dealing with, what might be termed, poorly performing staff. Many such Heads seem to hope that the proposals in this Report will help them address this problem. So let me quote from a paper prepared by the working group on Statute U for the Council and General Board (no doubt at some risk to myself since it’s labelled confidential at the top): addressing the problem of poorly performing members of staff ‘is not one of the purposes of the proposals’. So it would appear that this Report does not address the Heads’ concerns (at least not directly), and it is not their silver bullet (although it’s not clear to me that they really need one).
Second, there are the drivers outlined in paragraph 5 (page 131) of the Report. As far as I have been able to ascertain there is at most only a minor need to modify Statute U to comply with employment law. There are also a number of instances where Statute U is not consistent with ACAS guidelines and other best practice. I believe that the relatively minor amendments to Statute U needed to achieve this consistency are not controversial, and could have been dealt with years ago with a short Report and an uncontested Grace. Members of the Regent House might ask why this approach was not adopted. Another driver of the proposals, in paragraph 5(iii), is to ensure that the University’s procedures are both proportionate and fair, and I will return to that point later.
There is a third driver. I could not find this in the Report. However, the Registrary wrote to Mike Clark on 22 October 2009 noting that ‘At the time the working party was established, other, very specific, drivers for undertaking a review of Statute U were also identified including: ... the organizational need for greater flexibility, including staff restructuring’. To say that this was a hidden agenda would probably be unfair, but it was remarkably well-camouflaged. The title of this Report refers to disciplinary, dismissal, and grievance procedures. Will reforms to the disciplinary procedures aid staff restructuring? No, they won’t. Will reforms to the grievance procedures aid staff restructuring? No, they can’t. Will reforms to the dismissal procedures aid staff restructuring? Yes, they can. Members of the Regent House should ask why this driver was not made explicit in the Report.
Let me be clear, as a Trustee of the University I accept that the University must be able to make redundancies when necessary; but it can under the present Statute U. The University must also be able to dismiss staff for serious disciplinary offences; but it can under the present Statute U. However, there are checks and balances in the present Statute U (i) to ensure that a member of staff who has rocked the boat (and here I should declare a multiple interest) cannot be victimized either by a convenient re-organization, or by a very rigorous application of disciplinary procedures, and (ii) to ensure that re-organization or disciplinary procedures are not used as a back-door method for dealing with under-performing staff (as some less scrupulous employers do, and I hope the University never does1).
Another responsibility as a Trustee is to protect academic freedom. In this respect I’d like to associate myself with paragraph 34 from the Board of Scrutiny’s Fourteenth Report2. This deals with disciplinary and dismissal procedures, but it also applies to redundancy procedures. Let me quote it in full since I could not put it better myself.
Academic freedom is a cardinal value of the University. Statutes and Ordinances need to be drafted, not on the basis that this freedom will always be honoured and respected, but on the basis that one day it might not. This is not to question the good faith of those entrusted with the University’s fate for the time being but is, instead, to guard against what many may regard as the unthinkable abuse of misplaced power at some time in the future. Current procedures are deliberately complex, multi-layered and inclusive. They are there not to obstruct the good governance of the University but to impede its misuse. The law of the land requires no change. In the Board’s view the current protections in this area should be left alone.
Academic freedom is especially important in Cambridge because of our self-governance. All members of the Regent House, academic and academic-related, Schedule J and not Schedule J, need to feel free to sign calls for ballots and Discussions, and sign fly-sheets. Freedom of academic expression needs to be guaranteed both with fine words, and in supporting legislation, as the Board of Scrutiny understands.
The proposals for the sacking of Schedule J officers are bad enough. A reduction from two Graces to one, and no clarity when the Grace will be promulgated (paragraph 31, page 151)3. Further, there is also the removal of the requirement in the current Statute U that the Regent House should decide either ‘(a) on the recommendation of the Council, that there should be a reduction in the academic staff of the University as a whole, or (b) on the recommendation of the competent authority concerned, that there should be a reduction in the academic staff of any School, Faculty, Department, or other institution’. What is the betting that only the terminology in (a) will be used?
The proposals for the sacking of most non-Schedule J officers are worse. No Grace required at all, based on a spurious distinction drawn between ‘freedom of expression’ and ‘freedom of enquiry’ (paragraph 10, page 132). Both freedoms are required and need to be guaranteed: one without the other is as much use as a chocolate teapot. You may also have noticed the word ‘most’ before non-Schedule J officers, and it needs to be included because those non-Schedule J officers, like Secretaries of Schools, and the Directors and Head of the UAS, who have their posts enshrined in Statutes and Ordinances are more equal than others. A Grace would appear to be required to excise their jobs.
There are other inconsistencies in the arguments put forward for treating non-Schedule J officers differently. For instance the ‘Code of Practice for academic freedom’ applies to all officers, not just Schedule J officers. In section 7 of that code, ‘the right and opportunity, without discrimination of any kind, to take part in the government of the University and to criticize the functioning of higher education institutions’ is guaranteed. If this Code of Practice is to apply to all officers, and if all officers are to continue to play a role in self-government, then do not all officers need the guarantee of a decision by the University before there are redundancies?
I promised to return to one of the drivers of the reforms: namely the aim to ensure that the ‘University’s procedures are both proportionate and fair’ (paragraph 5(iii)). The problem is that some of the University’s procedures would be far from proportionate if the proposals went through. At present the disciplinary procedure by which you lose your livelihood is that same as that by which you can lose your degree. If the proposals are accepted it will be easier to lose your livelihood than your degree. Is that proportionate? In particular, to lose your degree you will still be judged by the University Tribunal consisting of five members chosen by lot with a legally qualified Chairman and you will have the right of legal representation, but to lose your livelihood you will be judged by a panel of three members chosen by the Registrary (or his deputy), none of whom need to be legally qualified and you will not have the right of legal representation (although the Chairman may grant it at your expense). If you lose your degree you will have twenty-eight days to appeal to five to seven members of the Septemviri, but if you lose your livelihood you will have ten working days to appeal to a panel of three members chosen by the Registrary (or his deputy); although the Vice-Chancellor still gets to be judged by the Septemviri. Is this proportionate and fair?
There are many other changes that water down the checks and balances. At present before dismissal proceedings can be brought before the University Tribunal the Vice-Chancellor has to institute such investigations or inquiries as appear to him or her to be necessary. Under the proposals the Vice-Chancellor merely has to authorize action. Also, while it may at first sight be fair that, in the case of dismissal, the officer facing dismissal will have the right to ask to be allowed legal representation while the Head of Department will not have the right to apply for external legal representation, one needs to remember that, whether or not the officer has legal representation (at his or her expense), the Head of Department will, presumably, have access to the University’s internal legal services.
Further, as is sometimes unfortunately the case with University documents, the sting is in the tail that is if you manage to get through 33 pages to Annex D. This Annex is the Council-approved guidance on what counts as gross misconduct, and what can lead to removal from office ‘without notice’ (a phrase I note does not appear in the current Statute U).
While I accept that it does not follow that any particular instance of the behaviour listed in Annex D will be of sufficient gravity to lead to dismissal without notice, there does seem to be no sense of proportionality in the list. In particular this list replaces ‘conduct of an immoral, scandalous, or disgraceful nature incompatible with the duties of the office or employment’ (Statute U, I, 5(b)) by a list of offences, some of which (at least to my eye) are less serious. Indeed, ‘unreasonable refusal to carry out a reasonable instruction’ seems lightweight compared to ‘conduct of an immoral, scandalous, or disgraceful nature’. Further, given that ‘conduct constituting failure or persistent refusal or neglect or inability to perform the duties or comply with the conditions of the office’ is in the Ordinance (paragraph 9, page 149), why is more lightweight ‘wilful refusal to carry our the duties of, or comply with the conditions of, the office’ in Annex D? Also as a warning let me note that the list in Annex D includes being unfit to perform duties as a result of unprescribed drugs or alcohol, so beware of the invite to the Old Schools sherry party immediately before your lecture (unless of course you are teetotal).
If the ‘guidance’ in Annex D is to be included then, because it could have a significant effect on dismissal, it should be approved by Grace, rather than by the Council.
There are other matters that I raised in the Discussion of the white paper that have been ignored. Despite a supposed commitment to academic freedom, there is still no ban on gagging clauses, and the Council still seems to think that the Public Interest Disclosure Act provides sufficient whistle-blowing protection. Some of you may have read the article in the Guardian on the nurse who filmed the disgraceful neglect of elderly patients on an NHS ward, and was subsequently struck off. I quote Peter Gooderham, Lecturer in Law and Bioethics at the University of Manchester: ‘The legal protection for whistle-blowers does not work. The NHS is littered with whistle-blowers whose lives have been destroyed’. We should not be reducing our whistle-blowing protections, de facto guaranteed in Statute U, at a time when the NHS, and banks for that matter, should be increasing theirs.
I hope that I have convinced you that the devil is in the detail, and unfortunately there is so much detail that I have no hope of fitting it into fifteen minutes. In an attempt to improve the details I have tried to engage constructively with the working group on Statute U (even if they do think thirty equals six, as Mike Clark discovered). There have always been a number of non-contentious proposals (such as improving the grievances procedures) and, compared with the white paper, there have been some improvements in detail, e.g. moving some procedures into Ordinances, and no longer letting your Head of Department dismiss you. However, the rights currently enjoyed by University officers are still on the whole being levelled down to those of assistant staff, rather than the rights of assistant staff being levelled up to those of University officers. The bottom line is that improvements have only turned a dire white paper into a bad Report. Statute U may not be perfect, it may need reform, but it is better than these proposals.
Is there a way forward? Maybe a reconstituted working group with a balanced membership, say representing the proportionality of the views expressed by speakers this afternoon, might be better. Such a membership might not argue that procedures described by nearly 14,000 words are a simplification of the current procedures described by about 7,000 words.
1Although I am a little concerned to note in paragraph 13 (page 133) there is an admission that the Council and the General Board may only have kept to the letter, if not the spirit, of Statutes and Ordinances by exercising ‘their authority to create ... posts, sometimes at a very senior level, on an un-established basis’.
3Although I would imagine that the Grace would need to be promulgated before the selection for redundancy is made, otherwise the arguments in paragraph 16 (page 133) would seem to apply.
The following remarks were made on Tuesday, 1 December:
Professor M. J. Daunton (read by Mrs S. Bowring):
Mr Deputy Vice-Chancellor, I have been an academic since 1973, and am naturally very concerned that we should always have the right to freedom in the pursuit of our research and in what we teach. Such a right is paramount. I was therefore particularly concerned by the comments of the Board of Scrutiny that the proposed changes to the Statute would potentially undermine academic freedom. However, my reading of the Statute does not lead me to any such conclusion. The University’s procedures will continue to ensure that all officers have freedom to question and test received wisdom, and to put forward controversial views, without any thought that they may put themselves in jeopardy. Of course, such views must remain within the law, and I would note, as former President of the Royal Historical Society, that there have been debates in the European Union over what is and what is not legally permissible in historical interpretations, which pose ethical dilemmas about the limits of freedom of speech. But such debates over the law are not material to the current proposals, and would arise even if the changes are not adopted. Surely within the academic community of Cambridge, we can be certain that the academic freedom of no officer could be threatened. What the revisions do allow is a more timely and efficient process, which remains more constrained than general employment law. I support the proposed revisions.
Sir Christopher Hum (read by Mrs S. Bowring):
Mr Deputy Vice-Chancellor, I intervene in this Discussion with some diffidence, since I do not come from an academic background. However my previous career as a civil servant has given me some experience which may be relevant to the subject of our deliberations. For a period of three years in the fairly recent past I was responsible for all aspects of the administration of the Foreign and Commonwealth Office at home and overseas. This included responsibility for personnel policy and its implementation in relation to several thousand staff worldwide, and specifically for disciplinary, dismissal, and grievance procedures.
I have therefore followed closely the recent discussions that led up to the Joint Report of the Council and the General Board and I have readily associated myself with that Report as a member of the Council. In the light of my previous experience of these matters I see the reform exercise as a timely effort to overhaul the relevant Statutes, reflect current legislation, and introduce best practice. The outcome puts in place procedures which are uncumbersome compared with what was in place before. I do not understand the assertion in the Note of dissent that the proposals are ‘unnecessarily complex’: they represent a simplification and improvement.
It may be said that I am not in a position to understand fully concerns about perceived threats to academic freedom or to academic tenure. I believe I can understand them. More to the point, I note that no such threat is perceived by the many academics who worked to bring the proposals into their present state, people of international eminence in the fields of employment law and practice, or by the large majority of my academic colleagues on the Council and the General Board.
The proposals in their current state are the product of exhaustive consideration and debate. It is now time to demonstrate that the University can reach a consensus and act on it. It would be highly damaging if we were seen as incapable of putting our own affairs in order.
Dr R. J. Barnes (read by Dr S. J. Cowley):
Mr Deputy Vice-Chancellor, last week there was a comparison between the current proposals and the revised Model Statute proposed by Professor Zellick to UUK and UCEA in 2003. As I understand it there is no proposal to adopt the revised model statute, hence the pertinent and relevant comparison is between the current proposals and Statutes B, 6 and U. The Zellick proposals are an irrelevancy.
Next, much has been made of the inadequacies of the current procedures as regards the University’s grievance and disciplinary processes. However, it turns out that the majority of procedures that are inadequate are not those carried out under Statute U (at most six of thirty), but those under the procedures for unestablished academic and academic-related staff, and those for assistant staff. However, as far as I can tell from Annex E and from the Human Resources section on the web, these latter cases follow a procedure (including very short appeal times) far more analogous to the proposed reforms than Statute U.
Hence if the majority of the burden of cases, as referred to in graphic terms by two or three speakers last week, is a result of a process that is not dissimilar to the proposed reforms, it would seem to be unwise to adopt these reforms.
Dr R. Charles:
Mr Deputy Vice-Chancellor, I am a University officer. I work in the University Computing Service. I teach students in the Archaeological and Anthropological Tripos. I have held three postdoctoral research fellowships and have published widely in my field. I am an academic-related member of staff and my post is not amongst those listed in Schedule J. I will be affected by these proposed changes.
I attended the road show last year and I would like to start by repeating the comments I made there, to ensure that they are finally recorded.
During our ‘consultation’ we were assured that one of the key drivers behind these proposed changes was a need to simplify procedures and make the language in which they were couched more comprehensible to those who might find the current complexity of Statutes and Ordinances too difficult. So it was with some interest that I read the Joint Report of the Council and the General Board published in the Reporter on 30 October to see how this simplification had improved matters.
At the road show I observed that I had no difficulty in understanding the language used in Statute U or the processes it describes. I was assured that this was uncharacteristic of academic-related staff. With this in mind I would like to share with you an example of the new improved text from the proposed Statute D, I, A:
11. Where a University officer also holds a contract of employment with the University then references to office in this Chapter, or in any Ordinance made under this Chapter or in any rule, code of practice, guidance, or other provision made under such Ordinance, shall be taken to include such employment, and references to removal from office shall be taken to include termination of such employment with the University, save that, where a University officer holds a contract of employment with the University which is not contingent on, or does not relate to, the holding of any office, then that contract of employment shall not be terminated by a decision to remove the University officer from office unless the person or body making that decision determines otherwise.
I’m afraid my formal education is a bit limited; it stops at the successful completion of a D.Phil. I have spent much of the last decade working in industry as a technical author. I am used to dealing with complex and challenging language and turning it into simple text. That text is unintelligible. If the intention of the authors of the Joint Report is to simplify Statutes and Ordinances and put them into plainer English, then this has failed.
My own belief is that this was never the real issue. Instead the nub of the matter is to change our existing redundancy procedures to make it easier for the University to remove its officers. No-one can have failed to notice that we are in the worst recession since the 1930s. The news is brimming with stories of job losses and tales of other universities currently shedding staff. Only last week I had lunch with a friend who told me how the academic staff of their institution have literally been decimated. Few in their university were prepared to speak out for fear that they would be next. Is this what we wish to see in Cambridge? For the proposed changes will pave the way for just that.
I returned to my university after ten years in the rather volatile IT industry. During that time I experienced seven separate redundancy processes at different companies. I have been down-sized, right-sized, off-shored, and even strategically re-aligned. The truth behind these euphemisms is that five times I have been made redundant. I will not argue against redundancy as a concept, there are times when roles do cease to be relevant and organizations need to be able to move on. But there are ways of doing this, both right and wrong.
In removing the key checks and balances of the Regent House and the Septemviri, and replacing them with ‘competent authorities’ that operate behind closed doors we will be following the wrong path. This year we have already seen processes that should be open and public buried in committee papers that only see the light of day after numerous Freedom of Information requests. If this pattern continues the Regent House will secede a crucial part of its role in the governance of this University. Once lost, that power will never be restored and the Regent House will become a shadow of its former self.
True we are offered a compromise alternative. One in which all University officers appear equal, but some are more equal than others. If a disciplinary, grievance, and redundancy process is good enough for the Vice-Chancellor, then it’s good enough for me, you, and everyone else. We should not be levelling down but up.
I am perhaps uniquely placed in having experienced the reality of how redundancies are handled, what ‘best practice’ in this context really means, and most importantly of all the impact this has on those who are made redundant. There are far too many things to say on this topic than can be covered in a short speech, so I will focus on one very important and long-lasting aspect that is barely touched on in the Joint Report, but which we know the University already uses.
This is the issue of compromise agreements, or ‘gagging orders’ as they are commonly known. HR best practice is to use these as a core part of any redundancy settlement. In return for some money and the promise of a reference you are sent on your way after signing a legal agreement that seals your lips forever. I have had little option but to sign such agreements three times. Of course, as they are gagging orders, I cannot tell you anything about my own.
Instead I’ll tell you about some of the standard restrictions in these agreements to give you a real flavour of redundancy ‘best practice’ as it is currently deployed.
First, it is usual for these to mandate that you will not set foot on any property owned by your former employer. This may be reasonable for a company housed on a business park, but is it viable for a university spread across a city? Can you imagine the problems this would cause? As an M.A. I have the right to use and borrow books from the University Library for life – surely no-one would attempt to block those rights because an employment relationship has ended? Would I be able to attend an alumni weekend? Which shops and other buildings in town could I go into? Perhaps the University might regularly send me a list of prohibited premises that I could conveniently commit to memory? Patently this is untenable.
Another standard requirement is that you will not have any contact or communication with your former colleagues. What of my freedom of speech and my academic freedom to collaborate with whoever I choose? Could I continue to teach for my College without communicating with the Director of Studies in my subject who is employed by the University? What of my friendships – some of the people I work with I have known since I was an undergraduate – should I cut them in the street and refuse all social invitations? Again this is nonsense and clearly a ridiculous sanction for anyone who lives in Cambridge.
Another standard clause is that you undertake to never say anything negative about your former employer. On the face of it this is more reasonable – such a clause would surely be used only to protect the University’s reputation?
Not necessarily. This directly conflicts with the Public Interest Disclosure Act of 1998. In fact HEFCE has issued guidance to all higher education institutions in a circular letter dated 4 March 2009 advising that compromise agreements which include confidentiality clauses should be the exception rather than the norm.
Please take a moment to imagine the practical reality that such agreements would have on anyone selected for redundancy. It is bad enough to lose your job. Is it tenable to continue to live and work in Cambridge or to attempt to maintain longstanding academic collaborations with such things in place? This strikes right at the heart of academic freedom, freedom of association, and basic human rights.
Will the Council please tell us whether compromise agreements will be used in future as part of redundancy settlements? If so, what restraints will they place on those forced to sign them?
On leaving industry and returning to my university I hoped that I would never be exposed to these ‘best practices’ again. Instead, I find myself in the eye of a storm in which good men and women discuss whether they should reform Statute and Ordinance and pass power from the Regent House into the hands of a few on the assurance that this is both good for us and good for the University. If we do this we remove key checks and balances that safeguard us from abuse, leaving only the Vice-Chancellor to enjoy the privileges and protections that once belonged to us all.
Ask yourself how you would like to be treated were you to be put ‘at risk’ of redundancy in the coming years. Would you prefer an open and transparent process with clearly defined rights of appeal, or a fast track towards the emergency exit?
Mr S. R. Wakeford:
Mr Deputy Vice-Chancellor, it seems clear to me that some of the proposed reforms are extremely desirable, but, as a member of the General Board, I did not sign the Joint Report. CUSU – the University-wide Students’ Union – have discussed the Joint Report at our own Council, and I wish to register, on the Union’s behalf, disappointment that the opportunity was not taken in the Report to address issues of poor staff performance. Also, while we recognize that the proposals may very well have been made with the best of intentions, we are concerned that their implementation not be taken advantage of to make necessary savings by cutting valuable staff.
Mr J. S. Peatfield (read by Mr R. S. Haynes):
Mr Deputy Vice-Chancellor, my name is Jonathan Peatfield. I am employed within the Department of Applied Mathematics and Theoretical Physics as a Computer Officer – a post commonly referred to as academic-related.
The proposed changes reduce the number of votes of Regent House required to proceed with redundancy from two to one for officers in Schedule J, and from two to zero for officers not in Schedule J.
Section 8(a) points to sections 10–14 as expanding on the differences between Schedule J and non-Schedule J officers and the reasoning for introducing language which discriminates between them with respect to redundancy etc. by claiming a weaker requirement for academic freedom.
However section 34(b) makes it clear that all officers are to be protected by the Code of Practice for academic freedom. There is a need to protect all officers against possible abuse by those in power and so all officer posts need the guarantee of a vote of Regent House before there can be any redundancies.
I know that a number of members of the University believe that officers who are not in Schedule J are not in ‘academic positions’; perhaps reflecting the situation before the introduction of Statute U. Reducing the protections given to some officers will re-enforce this division, reduce morale, and make it harder to retain skilled staff.
The supporting argument given for removal of the right of Regent House to vote on the competent authority’s selection in section 16 is just:
16. The proposed removal of the current requirement for the competent authority’s selection for redundancy to be approved by the Regent House is because of its potential serious unfairness. If, under the current arrangements, the Regent House approves a recommended selection, no harm is done. But if it is rejected, any subsequent further selection might be challenged for alleged unfairness, as the reasons actuating the Regent House in their decision (so far as they can be identified at all) will quite possibly be insupportable in law.
I fail to understand how Regent House being able to reject a selection can add to the unfairness. Note that earlier in section 12 we had:
12. Nor will the Council and the General Board ever seek to promote redundancies, with their attendant personal cost, other than in circumstances in which they are satisfied that the interests of the University require such a step. No good employer would.
In such (hopefully rare) circumstances it would seem to be fairly easy to also persuade the Regent House to agree with and vote for the selection.
However, I was surprised and encouraged to see that this says ‘the interests of the University require such a step’ and not some weaker phrase. It is not clear how this noble statement will be enforced unless Regent House is allowed to vote each time.
Perhaps the statement should be added to the draft Statute, so that any possible breach of this principle can be challenged.
Dr R. I. Watson (read by Mr R. S. Haynes):
Mr Deputy Vice-Chancellor, I am dismayed by the proposed changes to Statute U. Instead of taking the opportunity to improve job security for all staff, both academic and academic-related, in this climate of economic uncertainty, the University appears to wish to downgrade our terms and conditions, and revert to negative and punitive practices. The changes to the process for making staff redundant, which place so much power in the Councils of Schools, are also somewhat alarming. They are clearly a mechanism to ‘streamline’ the process, which comes at the cost of fairness and proper investigation. Finally, the changes to disciplinary tribunals do not bode well for making transparent and objective decisions in future. Overall, I am opposed to these proposals and I would like my views recorded.
Dr T. W. Hong (read by Mr R. S. Haynes):
Mr Deputy Vice-Chancellor, I object to the proposed changes to redundancy procedures as promoting arbitrary divisions between different categories of staff. Using Schedule J as the dividing line conflates the unrelated issues of those deserving of study leave with those deserving of employment protection. In the Report, great stress is laid on the supposed peculiar status of those engaged in teaching and research versus those who are not. This fails to recognize that in the Cambridge of today, teaching and research is not the sole province of Professors, but is carried out by a wide range of staff both academic and academic-related, as well as, dare I whisper, even unestablished staff. Indeed, although the Report repeatedly emphasizes the unique need to protect academic freedom in research in order to justify its divisive proposals, its proposed Code of Practice on academic freedom specifically does not cover unestablished staff, despite the fact that they carry out a large proportion of the University’s research.
I urge my colleagues to reject these provisions of the Joint Report.
Mr J. P. King (read by Mr R. S. Haynes):
Mr Deputy Vice-Chancellor, my name is Julian King, I am employed within the University Computing Service as a Computer Officer.
Prior to coming to work at the University I was employed in industry, so I have some idea what it is like to be employed in what is referred to as ‘the real world’.
I am sure that many will make comments on how these proposals are a bad idea. I agree with them. However I wish to make a different point. If, as seems clear is the case, that the terms of employment for many within the University are being made worse to their detriment, then it also seems clear that there should be a quid-pro-quo.
I am not a lawyer, but certainly my understanding was that you couldn’t change someone’s contract without their agreement. As an employee I would be reluctant to agree to my terms being made worse without some financial recompense. As a member of Regent House I would be most reluctant to ask an employee to accept these new terms without some recompense.
In industry people accept worse working conditions because they are paid significantly more money. If the University wishes to maintain a motivated workforce towards a more ‘real world’ standard, then they should expect to recompense us in a more ‘real world’ fashion. Alternatively it can risk losing the world-class members of staff it currently has. This would seem like a poor decision for a world-class university.
Mr R. S. Haynes:
Mr Deputy Vice-Chancellor, my name is Ronald Haynes, and I am employed as a Computer Officer, in the Department of Physics. I am also the elected Honorary Secretary of Cambridge UCU, or as Professor Cliff prefers, ‘CUCU’, which of course represents academic and related staff, but shares concerns about the treatment of all staff. Given the other cogent contributions which cannot agree to the proposed changes to the disciplinary, dismissal, and grievance procedures, I would like to pause a moment and wonder aloud what we are trying to achieve by these changes. I have understood that we gather to fulfil and extend the intention that we should be a self-governing community, bringing together diverse and independent contributions for the common good, based more on a high-minded covenant than on a least-common denominator contract. Yet the process and principles we gather to discuss seem foreign to these intentions. Like the essential purpose of a jury, we generally hold that there is a wisdom in a diverse crowd, certainly in a group larger than, say, three, and these fundamental principles of democracy apply to the self-governing model this University has championed and rightly defends with great energy. Things of great import and impact, such as redundancies, must not be reduced from the role of this assembly, but instead its support should be extended to our full community. The reasons should be clear, but the following are a few to add or underscore those already heard.
In the road show for the white paper, leading up to this proposal, we were meant to have a consultation process. As we have already heard, regrettably we learned that no notes were taken, and so no consultation occurred. That said, there was at least one major change which came, in fact, from the Regent House Discussion on the white paper earlier this year, and that was Stephen Cowley’s clarification that there was no legal reason or need to make these changes. In last week’s Discussion, Professor Forsythe indicated further that the present arrangement is generally fine and legally fit for purpose, whereas worryingly the proposals would tend to bring the University into illegality. Given these serious points, and the fact that the general, some would say overwhelming response has been negative to the white paper and the current proposals, it would now be prudent to respond to the collective wisdom of our community and drop these proposals.
In case we needed further support for maintaining the current Statute, perhaps with some development within our current framework, we have heard from Mike Clark that there appears to be no evidence that we have been overwhelmed with, for instance, grievances under Statute U, as was intended to be a compelling case to change. In fact, the delays come more from following practices along the lines of those proposed. Not only do the numbers of Statute U-related cases seem low, but that is what we should rightly expect. Where there are robust procedures to handle grievances and other such difficult matters, the tendency is to very strongly encourage all parties to the discussion table, to try to avoid the more serious next steps. That has been my experience, and I believe many here, and seems to be the operational inclination of the HR Division. There is no reason, then, to suggest that such helpful processes as mediation do not have a chance at present; they do. Since such processes are already in operation, and some of us have encouraged and participated in these processes, nothing prevents these from being expanded further, within our current arrangements, as part of the natural response to work-related and interpersonal difficulties.
We have rightly heard some worries about academic freedom, and how it should apply, and to whom. Professor Bowring reminded us that we introduced some unhelpful splits in our community during the HERA Pay and Grading exercise, which still inhibits our efforts today, including in terms of equal opportunities for all those unnecessarily omitted from the Statute U protection in the current proposals. Academic freedom concerns affect a much greater portion of our community than is allowed by the proposals, and in fact should be generalized rather than risk disadvantaging anyone. We should always level up, as many have stated, and many more need protection in our community than the attempted narrow definitions have admitted.
As others have pointed out, there are serious deficiencies in the proposals such as would threaten or undermine what we would normally understand by academic freedom. Two years ago, in a speech on academic freedom given by Bill Rammell, as the then Minister of State for Higher Education, he helped remind us of the larger principles at stake here:
the space for inquiry must be rigorously defended, so long as they are open and open to challenge1
It is noteworthy that, unlike the current proposals, he includes both freedom of inquiry and expression, inextricably bound together. In case it was not clear, he further emphasized the idea:
Universities must be open to the light of free debate and free inquiry. Because if they are not, they will become places of darkness, obscurantism and fear.2
So many of us came to this University, and wish to continue to be part of its life and work, in order to participate in a free and thriving community. If you will forgive the metaphor, we risk not just throwing the baby out, but in then retaining the bathwater; these proposals are not just stale waters, which will no longer renew or refresh, but they would be injurious to the health and life of our community.
Good principles must precede good practice, and when they do, then best practice is backed by the best principles. We must reject these proposals because they would overturn our best principles and our best practice. We should in fact level up and extend our best practice to our wider community. Our goal should ever be to preserve our community and trust our collective wisdom to continue to guide our future.
1The last shadow of liberty?: Academic freedom in the 21st century (http://www.dius.gov.uk/news_and_speeches/speeches/past_ministers/bill_rammell/liberty)
Mr V. R. Woodley (read by Dr D. R. de Lacey):
Mr Deputy Vice-Chancellor, the Joint Report states that ‘The Council and the General Board do not consider, and do not intend to suggest, that the work of officers not in Schedule J is less valuable or less essential than that of their Schedule J colleagues’ and yet the proposals intend to separate academic-related offices from academic offices and downgrade academic-related officers’ terms and conditions of employment to make it easier to dismiss them.
In response to comments that ‘Similar procedures between different categories of staff should be achieved by strengthening the rights of assistant staff, and not by removing those of academic-related staff. The Council and the General Board should level up, and not level down’, the Joint Report makes it quite clear that their strategy is to divide and conquer rather than take the holistic approach that the original green paper suggested. The Joint Report’s approach is not fit for the purpose that it proclaims and shows no intention of trying to act as a good employer and ‘level up.’
The Joint Report claims to be still guided by the aim that ‘...similar procedures apply to all members of staff of the University.’ Yet in fact its objectives will leave a chasm between academic and other University staff which will probably never be closed.
The earlier green paper seeks ‘…to achieve equal treatment for all staff...’ which I believe is a good aim. I also believe that the University will need to apply its claimed core value of ‘freedom from discrimination’ if it truly wishes to achieve this aim. It should surely not be proposing to create a deeper divide within its staff in the name of equality.
Dr A. M. Ahmed (read by Dr D. R. de Lacey):
Mr Deputy Vice-Chancellor, I am greatly concerned that the proposed revisions to Statute U will facilitate the compulsory redundancies that they have led many of us to expect. As a Faculty UCU representative I am opposed to compulsory redundancy and so wish to add my voice to my many colleagues who have spoken so clearly against it.
Dr C. G. Warnes (read by Dr D. R. de Lacey):
Mr Deputy Vice-Chancellor, I would like to add my voice to the protest against the recently proposed reforms. In particular it seems to me that the proposed changes to policy on dismissal are an egregious step in the wrong direction. We urgently need to safeguard freedom of expression and the right to disagree and these proposals would appear to undermine these principles. I strongly urge the University to reconsider them.
Dr D. R. de Lacey:
Mr Deputy Vice-Chancellor, thank you for allowing me as a retired, and therefore ex-, Regent to address this Discussion.
I have, perhaps, more experience, and a more personal experience, of Statute U than most of those present today. So I am unconvinced by the argument, which has been much put about, that the number and complexity of Statute U cases are a burden on the University – paragraph 35(d) for instance speaks of ‘The failure of Statute U to provide a proportionate and efficient means of dealing with matters’. Yet a Freedom of Information request1 reveals that statistics are not actually kept but that the numbers are low. And from my own experience the major problem in dealing with the case was that neither the then Head of Human Resources nor others of his staff appeared to have read or understood the Statute; in which case all that is required is a minimum of education, not a major restructuring of the Statutes.
The Report distinguishes, in several places, between Schedule J officers and the rest. Paragraphs 9 and 10: ‘The principal changes to current arrangements proposed ... are to restrict ... a decision by the Regent House as a precondition for ... redundancy from all University officers to University officers in Schedule J ... . The reason ... is one of proportionality of process. The unique characteristic of university, as contrasted with other, employment is the need to protect academic freedom’.
What this fails to do is to distinguish between officers whose duties include teaching and research from those whose do not. What of the ‘academic-related’ officer who is also an Affiliated Lecturer, a category of teacher without which some parts of the University might well struggle to fulfil their proper role. Affiliated Lecturers are of course not ipso facto in Schedule J, but surely they are entitled to academic freedom?
Make no mistake, Regents. This proposal is all about restructuring your Departments, and getting rid of junior staff; however much bluster is produced to hide the fact. For evidence, see the University newsgroup at ucam.change.governance in the ‘Statute U Discussion’ threads. There are certainly no other grounds on which such a sledgehammer of legislation could be defended.
Perhaps however it could be argued that such restructuring is necessary for the good of the University: we cannot continue to live beyond our means. A moment’s reflection will indicate, though, that the major losses in this Brave New World will be junior academics who have irritated the Head of Department, not the old dead wood. Is that what we want? The response of the Council of the School of Biology to the white paper2 is instructive: minute 09.007 reads ‘The Chairman thanked Mr Seehra for his overview and agreed the White Paper had benefits. No further comments were made on the review of disciplinary, dismissal, and grievance procedures’; but a great deal of comment is then made on members’ concerns over retirement policy.
Two dicta should guide you when it comes to a ballot. If it ain’t broke, don’t fix it; or for the more classically minded, timeo danaos et dona ferentes3: to paraphrase slightly, be very afraid of this gift-laden Report.
Dr G. A. Reid:
Mr Deputy Vice-Chancellor, I speak as the fourth member of the working group established in 2003 to review the University’s discipline, dismissal, and grievance procedures. Progress has been slow, but for no very sinister or disreputable reason. For the first part of the period since we were set up, the focus of the work of what are now the Human Resources Committee and the Human Resources Division was on the new pay and grading structure to achieve a common approach to pay and grading for all levels of employment in the University.
A methodical and listening process of consultation has been followed. The initial green paper asked the fundamental question of whether it was desirable that, so far as possible, there should be a single set of procedures for discipline, dismissal, and grievances for all University staff. The responses were supportive, but with the proviso that the rights of senior members of the University to be judged by an independent tribunal of their peers should be preserved – as it has been.
The white paper followed with detailed proposals and careful attention was paid to what was said in response. Much of what was said we have taken heed of, and we believe that our proposals are better as a result. Some things have been said in this Discussion that were not said then, and they will of course be considered. Perhaps I can just pick up one of them, namely Professor Ibbetson’s remark, as Chairman of the Faculty Board of Law, that the Code of Practice for continuation of employment beyond the normal retirement age is a mess. The Code is simply drafted to reflect current practice, the purpose of which is to give those reaching the retiring age, as well as their Faculties and Departments, the opportunity to plan ahead, while protecting the right to apply for continuation of employment at any time up to six months before reaching the normal retirement age. But of course that can be looked at further.
I would like to continue these remarks, however, with the theme of establishing common employment procedures in the University. Mr Matheson questioned the proposed guidance on what constitutes gross misconduct. ACAS guidance suggests that disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct. The University does not currently do that in relation to University officers; it does, however, for assistant staff. The example to which Mr Matheson has objected, of being unfit to perform duties as a result of unprescribed drugs or alcohol, is taken from the University’s assistant staff code. Of course, as with all the examples, whether or not a particular instance constitutes gross misconduct is a matter of fact and judgment. But the question that I ask is whether unfitness at work by reason of drugs or drink is in some way worse in a member of the assistant staff than in an officer. Why should a different rule be applied?
Professor Forsyth referred to the University Tribunal and the Septemviri as being patently impartial and patently independent (which maybe deals with Mr Goode’s criticism of the membership of the proposed panels being chosen by the Council, for that is how the University Tribunal currently operates). He does not say – and is right not to say – that the disciplinary and appeal committees chosen from standing panels will not be impartial or independent. But neither does he say why a body of five persons is better to judge a matter at first instance, or a body of seven is better to hear and determine an appeal. Those sizes of bodies are disproportionate to normal common practice. Employment (and most other) tribunals and the Court of Appeal consist of three members; the Supreme Court (formerly the judicial committee of the House of Lords) comprises five judges and only on matter of the highest constitutional importance extends its membership to seven. Because the University currently adopts a particular pattern does not mean that that is the only fair and just way of proceedings. The larger the body to be assembled, the more difficult it is to make arrangements and the greater the likelihood of delay, with the corrosive effect that that entails. Moreover, and importantly, the system proposed of committees of three persons picked from panels readily adapts to provide a common fair process for all categories of employment within the University.
And the past can be deceptive too. Dr Wheeler said that a Dirac, a Newton, or a Darwin would have been lucky to avoid dismissal today if the proposed changes are introduced. Why precisely anyone should have wished to remove Dirac or Newton or Darwin (or for that matter Professor McIntyre) is unclear. But remember that before the introduction of Statute U in 1993 there was no statutory definition of academic freedom and an officer not satisfactorily performing the duties of his or her office could be removed by a two-thirds majority vote of the competent authority.
I wish to touch finally on two other points made in the Discussion.
Professor Ibbetson referred to the desirability of legal representation being permitted as of right in a matter involving potential removal from office. This is a difficult area, for the whole tenor of employment practice is to keep lawyers out of workplace disputes (recognizing that Employment Tribunals exist to correct unfair decisions by employers). On the other hand there is a single case, which is referred to in the Report, in which the Court of Appeal has held that a Hospital NHS Foundation Trust may be obliged to permit legal representation. The basis of that decision, which involved a junior doctor, was that the decision had serious implications for the doctor’s future ability to practice his profession which went beyond the immediate employment relationship. The changes made by the working party to their white paper proposals would meet that point. Professor Ibbetson suggests that they should have gone further. The point is an important one that the Council and the General Board will have to consider carefully.
Finally, redundancy: I have remarked already on the slow progress of the working group in our task. We have not been driven by present economic conditions in our proposals; indeed we have sought to review a process (namely that of Statute U) which was never discussed or approved by the University in order to reflect changes in employment practice and provide an improved, fair and proportionate system. Mrs Horsley, in her remarks, has accepted some of what we have proposed, but she questions whether the requirement for Regent House approval of a redundancy situation should rest on nature of office or nature of activity. That is a very good point, and one that expresses much better than the working group have their somewhat veiled references to Statute C, II, 1, C, III, 2, and C, V, 1. Those Statutes place in the hands of the Regent House the power of creation and suppression of Schools, Faculties, and Departments. They do not precisely meet Mrs Horsley’s point and it is not altogether easy in drafting terms to see how that might be done in a precise and effective way. For that reason the working group concentrated, as a reasonable proxy, on the Schedule J/non-Schedule J distinction.