Skip to main contentCambridge University Reporter

No 6267

Wednesday 23 May 2012

Vol cxlii No 32

pp. 611–638

Report of Discussion

Tuesday, 15 May 2012

A Discussion was held in the Senate-House. Pro-Vice-Chancellor Professor John Rallison was presiding, with the Registrary’s Deputy, the Junior Proctor, a Deputy Proctor, and seven other persons present.

The following Report was discussed:

Joint Report of the Council and the General Board, dated 23 April and 18 April 2012, on the process for the redress of grievances under Statute U (Reporter, 2011–12, p. 552).

Professor N. Gay (Christ’s College, Department of Biochemistry, and University Council):

Mr Deputy Vice-Chancellor, although broadly speaking I welcome the revised procedure for the resolution of grievances under Statute U, there is one specific change that I believe would improve the legislation. In fact, I raised this at the last Council meeting, but the Pro-Vice-Chancellor for Institutional Affairs and the Registrary argued that this Discussion was the appropriate place to air the matter. It requires only that a few words are inserted into the current draft Ordinance, and so it will be fairly silly if a ballot is needed to resolve it.

The situation I am concerned about is when the grievance is directed against the Responsible Person that is the Head of Department or Institute. Because of their position of authority, it is particularly difficult to ensure a fair procedure in these cases. In the current Statute U, VI, 3, such a complaint is dealt with directly by the Vice-Chancellor. By contrast, the current proposal envisages that another Responsible Person is appointed by the Head of Human Resources at his or her complete discretion. In view of the particular difficulties associated with this kind of complaint, and the likelihood that it would involve a significant academic element, I think it is inappropriate that this key decision should be made by an administrator alone, without any academic oversight. In my view, it should be decided in consultation with a senior academic, and I suggested that the Chair of the Human Resources Committee (usually a Pro-Vice-Chancellor) would be appropriate. This can be achieved by simply amending paragraph 10 of the draft Ordinance to read:

who, in consultation with the Chair of the Human Resources Committee, will appoint a person to act in place of the Responsible Person in the Formal Stage of the Grievance Procedure.

Mr D. J. Goode (Wolfson College and Faculty of Divinity):

Mr Deputy Vice-Chancellor, you may recall that when a previous Report, the Joint Report of the Council and the General Board, dated 27 October 2009, on disciplinary, dismissal, and grievance procedures,1 was discussed on 24 November 2009, I made a number of remarks about the Report that could be described as somewhat less than complimentary.

Though deeply critical of that Report, I was at pains in those remarks to point out that I was not opposed to all change, or even to some change, just to that change, and I went on to say that:

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.2

I am thus pleased to see that the encouragement of mediation at the informal or formal stages of a grievance is an important part of the proposed procedure.

If mediation is to become an effective tool, the profile of the University’s internal mediation service needs to be raised, for it had only seven cases in 2010, of whom five were University officers; nine in 2011, of whom five were University officers; and, as of today, there have been three so far this year, of whom one was a University officer. Since its formation in March 2010, a total of 39 staff have been involved in mediation, of whom 11 were University officers.

This is good work, and has often brought a solution at an early stage of disciplinary and grievance cases, and prevented the need for a more formal procedure at all in many instances. However, the figures feel low in a workforce of more than 9,000,3 and more resource needs to be put into promoting the mediation service.

The proposal to draw a clear distinction between the informal, formal, and appeal stages of the process is welcome, as is the introduction of a proper appeal procedure; all of which things are at best unsatisfactory in the present Statute U.

Speaking as someone who regularly attempts (and I like to think, even occasionally succeeds) to help Cambridge University and College Union members and the University administration find mutually acceptable solutions in what are often situations of seemingly insoluble aggrievance, I welcome this Report.

Professor G. R. Evans (Emeritus Professor of Medieval Theology and Intellectual History) (read by the Junior Proctor):

Mr Deputy Vice-Chancellor, review of the Statute U grievance procedures is of course long overdue, and in many respects this Report proposes a perfectly sensible procedure. Nevertheless, these proposals raise some fundamental as well as some lesser concerns.

The demotion from Statute to Ordinance

My chief concern relates to the questions already prompted by proposals in the overhaul of the Statutes and Ordinances to redraw the boundary between Statute and Ordinance. It is proposed that the new procedure be placed in the Ordinances and the Statute repealed. Ordinances are much easier to change than Statutes. Below Ordinances in the legislative hierarchy sit a variety of guidelines and codes which can be altered without reference to the Regent House at all. The Regent House will be wise to keep as much as possible of its domestic legislation under its own direct control. Look what happened to Senior Academic Promotions procedures once changes moved into the hands of the General Board.

Note the appearance in last week’s Reporter of a Notice seeking to create without Report or Grace a ‘Policy against bribery and corruption’.1 Its intention is to protect the University against being prosecuted for failing to prevent fraud, which has been made a strict liability offence under the Bribery Act 2010.

I will not comment on the grammar of the sentence I am about to quote, merely its thrust:

As an institution it is essential that a robust anti-bribery and corruption policy and appropriate training are put in place.

Surely the protection would be stronger if this ‘Policy’ had been an Ordinance?

If the ‘Policy’ had been proposed as an Ordinance, an opportunity for Discussion would have enabled a speaker to point out that flagging up fraud can be done confusingly under several procedures as now proposed. The proposed new grievance procedure too could be construed as allowing allegations of bribery or fraud to be raised within it. (‘He tried to bribe me not to reveal his fraudulent behaviour?’) And a Discussion might also have prompted someone to draw attention to the fact that this ‘Policy’ requires on pain of discipline, disclosures which are already protected disclosures under the Public Interest Disclosure Act and listed as such in the University’s PIDA ‘Policy’.2 ‘Should be read together with’ existing ‘guidance, policies, and procedures’ is hardly helpful when those procedures do not coincide, and indeed conflict, with one inviting a raising of concern while another threatens disciplinary action if the concern is not raised.

The two ‘Policies’ need to be conjoined in some way or the (pain-of-discipline) raiser of a concern about fraud will have to decide whether to ‘blow the whistle’ with the Academic Secretary/Registrary or to ‘report’ it to the Registrary/Director of Finance, in which case it ‘shall be treated as a report made by a Head of Department or an individual pursuant to Regulation 20 of the University Financial Regulations’.3 Under one process he would be protected from reprisal. Under the other he would not. So in due course he might have a grievance about that too.

When I was a member of the Council in 2000, we approved a ‘Statement’ about Public Interest Disclosure which today links online to what is now called a ‘Policy’.4 I do not recall the Regent House being consulted about this transition or its implications. If it is already so easy to by-pass the need for the consent of the Regent House to legislative changes in the University, what could the consequences be of allowing this first step towards a management-led legislature by demoting Statute U piece by piece? Attempts to do this for Redundancy a year or two ago raised merry hell in Discussions. Is Grievance to be the Trojan horse which brings in a horde of mere ‘Policies’ in place of domestic laws of known authority? Even in universities which are not democracies the governing body must agree domestic legislation. And in Cambridge the Regent House, not the UAS or even the Council, remains the governing body under Statute A. (A Statute shortly, I wonder, to become an Ordinance, and then a Policy, and then a Whim?)

Will the new procedure work better than the old?

Another concern is whether these new grievance arrangements will deal with the basic problem about grievance procedures, which is that they rarely resolve anything and often do more harm than good, since those grieved against are likely to be angry and upset, and working relationships may be made much worse for a future which, in an academic community, may be protracted for decades to come. Not always, though. Grievances usually run from junior towards senior, and often grievances seem to end with the ‘voluntary’ departure of the person who raised the grievance, with a Compromise Agreement signed, commonly including a gagging clause.

What actually is a grievance? What is the range of discontents which ought to be covered (excluding those which are properly to be dealt with under other procedures)? The current Statute U, VI, 1 definition is:

any complaint by a member of the academic staff which constitutes a grievance concerning his or her appointment or employment, where the grievance relates solely to matters affecting the member as an individual, or to matters affecting the member’s personal dealings or relationships with other members of the University staff, not being matters for which express provision is made elsewhere in this Statute.

It therefore excludes ‘systemic’ concerns or matters of alleged mismanagement or maladministration.

Promisingly, though worryingly in the light of points already made, a much broader definition is given in this Report, embracing ‘concerns, problems, or complaints’. Now raising concerns need not be adversarial. It can be a responsible drawing of attention to something which seems to be going wrong, systemically or ethically. A complaint may be directed against a fellow employee or it may not. If it is ‘systemic’ it is not obvious that it should be approached adversarially. As to ‘problems’, they could be of many sorts for which an adversarial process is not appropriate.

The proposed encouragement to consider mediation is welcome, but alternative dispute resolution offers a spectrum of possibilities from early neutral evaluation to arbitration, and surely there is a case for exploring the full range of options for voluntary stepping to one side of the adversarial process and considering all the ways in which a resolution could be reached? This will be especially important where the ‘problem’ or ‘concern’ is a ‘systemic concern’ and the potential parties may include the UAS as a whole. Those who raise concerns about mismanagement or maladministration (or bribery or fraud) should not find themselves with no option but to sign an agreement to leave the University in return for a severance payment.

The proposed formal process seems thin on ‘fairness’ requirements. These are as important for a person grieved against as for the complainant. To be the object of a grievance is a painful and stressful business, and in an adversarial process fairness to all parties is essential. The wording of Statute U, I, 1 (c) which requires the procedures to ‘apply the principles of justice and fairness’ echoes the wording of Education Reform Act 1988 s.202 under which the Statute sits. But Cambridge never worked up its Ordinances under that Statute in any detail. A scrappy paragraph may be found in Chapter II of the Ordinances after Septemviri and before Student complaints, under (for some reason) ‘Matriculation, Residence, Admission to Degrees, Discipline’:

1. When a Grievance Committee has been appointed under Statute U, VI, 8, the Chairman of the Committee shall invite the aggrieved person, and any person against whom the grievance lies, to submit a written statement to the Committee.

2. The grievance shall not be disposed of without an oral hearing at which the aggrieved person and any person against whom the grievance lies shall have an opportunity to be heard and to be accompanied by a friend or representative.

3. If after due consideration the Grievance Committee are of the opinion that the grievance is justified, they shall make such proposals for the redress of the grievance as they think fit. 5

Here has been an opportunity to ensure not only that academic and academic-related staff with grievances may enjoy the same detailed procedural fairness protections as students making complaints, but also that something is done to provide a forum in which mutual indignations between members of these categories may be resolved speedily and without having to run two parallel but separate processes in connection with the same dispute.6

Then there is the question of the relationship between discipline and grievance procedures. It is usually unwise for an institution to make changes to one without simultaneously considering the other. In some institutions it is not unknown for a person raising a grievance to find himself or herself suddenly subjected to a disciplinary process, with the institution determining that it will deal with the disciplinary matter first. The member of staff is dismissed and the institution then says that it will not consider the grievance because the employee is no longer an employee. I am not suggesting this would happen in Cambridge but it could, if the grievance procedure is changed without exploring the potential reciprocity of the two processes.

The loss of rights

Finally, may I draw attention to a particular loss of rights in the proposal that:

13. The officer has the right to be accompanied by a University employee or by a trade union representative. For a person to qualify as a trade union representative, he or she must be certified in writing by the union as having experience of, or having received training in, acting as a worker’s companion at disciplinary or grievance meetings. ...

The provision of the Model Statute on which Statute U, VI, 9 is based is not so limited. It allows both ‘the aggrieved person and any person against whom the grievance lies’ to be accompanied by any ‘friend or representative’. I have acted as such a ‘friend or representative’ in other Model Statute universities, and the freedom so to act has been welcomed by the person who was glad of this support. Why restrict support to trade unions and fellow employees just because that is the minimum the law prescribes?