As Deputy Vice Chancellor (Deputy Director), Director of Staffing, you receive at approx. 6pm on 4 Nov 1998 a doctor’s certificate of illness stating that a member of staff is ‘unfit’ and also a one-line ‘resignation letter’ (initial notification of termination of contract under normal contractual conditions) allegedly composed and signed by the member of staff .
Would you:
a) ignore the ‘resignation letter’ knowing that the member of staff is unfit and has been certified as such by his/her GP’s note
b) write to the member of staff and ask him/her about his/her intention
c) phone the member of staff and ask him/her about his/her intention
d) adopt the ostrich position
e) speak with the Vice-Chancellor
f) notify the Board of Governors
g) compose your own acceptance letter
h) compose your own acceptance letter and have it delivered to his/her home
i) compose your own acceptance letter, without having it properly authorised by Personnel and have it delivered to his/her home
j) compose your own termination letter with date of termination, without having it properly authorised by Personnel and have it hand-delivered to his/her home an hour later
Monday 24 September 2007
Problem 7: Dealing with a member of staff not fit enough to attend a hearing
As Deputy Vice Chancellor (Deputy Director), Director of Staffing, you have been informed by Personnel Department (on 4 Nov 1998 between 2-3pm) that a senior academic, on suspension pending a hearing for allegedly being ‘absent without authority’, has phoned from his/her home to say that he/she is too ill to attend the hearing the following morning and has seen his/her GP who has also certified that he/she is not fit. You are also aware of the fact that the member of staff has complained about the irregular suspension and improperly implemented disciplinary procedure.
Would you:
a) write to the senior academic wishing him/her a speedy recovery and invite him/her to a meeting once he/she is fit enough to attend
b) phone the member of staff over the next few days to see how things are progressing, and offer your support
c) adopt the ostrich position
d) phone the member of staff and assess the nature of the illness
e) phone the member of staff and inform him/her that the disciplinary procedure will proceed in his/her absence even if he/she is unfit to attend
f) phone the member of staff and inform him/her that the disciplinary procedure will proceed in his/her absence even if he/she is unfit to attend and if you do not receive a letter of resignation by the end of the day
g) phone the member of staff and inform him/her that the disciplinary procedure will proceed in his/her absence even if he/she is unfit to attend and that he/she will be sacked for gross misconduct the following day
h) phone the member of staff and inform him/her that the disciplinary procedure will proceed in his/her absence even if he/she is unfit to attend
and that he/she will be sacked for gross misconduct the following day and that it will be on his/her record for life, if you do not receive a letter of resignation by the end of the day?
i) phone the member of staff and inform him/her that the disciplinary procedure will proceed in his/her absence even if he/she is unfit to attend and that he/she will be sacked for gross misconduct the following day and that it will be on his/her record for life, if you do not receive a letter of resignation by the end of the day, and that you will send somebody round to fetch it if the senior academic is too ill to deliver it?
Would you:
a) write to the senior academic wishing him/her a speedy recovery and invite him/her to a meeting once he/she is fit enough to attend
b) phone the member of staff over the next few days to see how things are progressing, and offer your support
c) adopt the ostrich position
d) phone the member of staff and assess the nature of the illness
e) phone the member of staff and inform him/her that the disciplinary procedure will proceed in his/her absence even if he/she is unfit to attend
f) phone the member of staff and inform him/her that the disciplinary procedure will proceed in his/her absence even if he/she is unfit to attend and if you do not receive a letter of resignation by the end of the day
g) phone the member of staff and inform him/her that the disciplinary procedure will proceed in his/her absence even if he/she is unfit to attend and that he/she will be sacked for gross misconduct the following day
h) phone the member of staff and inform him/her that the disciplinary procedure will proceed in his/her absence even if he/she is unfit to attend
and that he/she will be sacked for gross misconduct the following day and that it will be on his/her record for life, if you do not receive a letter of resignation by the end of the day?
i) phone the member of staff and inform him/her that the disciplinary procedure will proceed in his/her absence even if he/she is unfit to attend and that he/she will be sacked for gross misconduct the following day and that it will be on his/her record for life, if you do not receive a letter of resignation by the end of the day, and that you will send somebody round to fetch it if the senior academic is too ill to deliver it?
Legal Interlude III: Relevant International and Statutory Provisions
Article 41 of the Charter of Fundamental Rights of the European Union:
‘the right of every person to be heard, before an individual measure which would affect him adversely is taken.’
Education Reform Act 1988 (amended 1992), S. 202-205
202: The University Commissioners
(2) In exercising those functions, the Commissioners shall have regard to the need –
(c) to apply the principles of justice and fairness
Articles of Government
In exercise of the powers conferred upon it by section 125 of the Education Reform Act 1988, the University Higher Education Corporation makes the following Articles of Government in accordance with which the University shall be conducted:
2.1 The University shall be conducted in accordance with the provisions of the Education Acts 1994 to 1993, any subsequent Education Acts, any relevant regulations, orders or directions made by the Secretary of State, or by the Privy Council, and subject thereto, in accordance with the provisions of the Instrument, these Articles and any rules or bye-laws made under these Articles.
9.3 The Board of Governors shall ensure that there are suitable arrangements for
enabling the members of staff of the University to raise matters of proper concern to them at all levels in the University.
10.4 (c) a suspension against which an appeal is made shall continue to operate pending the determination of the appeal.
Provisions by the Commissioners (Board of Governors) re. Education Reform Act
Staff Disciplinary Procedure
2.2 [Principles] No disciplinary action will be taken against a member of staff until a full investigation has been carried out. The nature of the breach of discipline must have been made known and the individual given the opportunity to state his/her case prior to any decision being made. The investigation does not form part of the disciplinary procedure. Its purpose is to gather the relevant facts to determine the most appropriate course of action, which may, or may not, involve disciplinary action.
5.4 [Authority to take disciplinary action] The manager authorising the disciplinary action must not have been directly involved in the circumstances of the case.
‘the right of every person to be heard, before an individual measure which would affect him adversely is taken.’
Education Reform Act 1988 (amended 1992), S. 202-205
202: The University Commissioners
(2) In exercising those functions, the Commissioners shall have regard to the need –
(c) to apply the principles of justice and fairness
Articles of Government
In exercise of the powers conferred upon it by section 125 of the Education Reform Act 1988, the University Higher Education Corporation makes the following Articles of Government in accordance with which the University shall be conducted:
2.1 The University shall be conducted in accordance with the provisions of the Education Acts 1994 to 1993, any subsequent Education Acts, any relevant regulations, orders or directions made by the Secretary of State, or by the Privy Council, and subject thereto, in accordance with the provisions of the Instrument, these Articles and any rules or bye-laws made under these Articles.
9.3 The Board of Governors shall ensure that there are suitable arrangements for
enabling the members of staff of the University to raise matters of proper concern to them at all levels in the University.
10.4 (c) a suspension against which an appeal is made shall continue to operate pending the determination of the appeal.
Provisions by the Commissioners (Board of Governors) re. Education Reform Act
Staff Disciplinary Procedure
2.2 [Principles] No disciplinary action will be taken against a member of staff until a full investigation has been carried out. The nature of the breach of discipline must have been made known and the individual given the opportunity to state his/her case prior to any decision being made. The investigation does not form part of the disciplinary procedure. Its purpose is to gather the relevant facts to determine the most appropriate course of action, which may, or may not, involve disciplinary action.
5.4 [Authority to take disciplinary action] The manager authorising the disciplinary action must not have been directly involved in the circumstances of the case.
Problem 6: Dealing with an improperly applied suspension and disciplinary procedures
As Deputy Vice Chancellor (Deputy Director), Director of Staffing, you are alerted to the fact that between 21 Oct 1998 and 30 Oct 1998, irregularities and unfairness are occuring in the treatment of a fellow member of staff; in particular in the way a suspension and disciplinary action is allowed to proceed, and is proceeding against a senior academic for their allegedly being 'absent without authority' on a working trip between 12-16 Oct 1998, and in spite of Personnel's awareness of the fact that the member of staff is already being treated unfairly and is being victimised.
Do you:
a) seek to protect the senior academic from further harm in whatever way seems appropriate
b) seek to rectify the situation immediately
c) set up a 'hearing within a hearing'
d) adopt the ostrich position
e) take pleasure in seeing how things pan out?
Do you:
a) seek to protect the senior academic from further harm in whatever way seems appropriate
b) seek to rectify the situation immediately
c) set up a 'hearing within a hearing'
d) adopt the ostrich position
e) take pleasure in seeing how things pan out?
Wednesday 12 September 2007
Legal Interlude II: Relevant Statutory Provisions
Education Reform Act 1988 (amended 1992), S. 202-205
202: The University Commissioners
(2) In exercising those functions, the Commissioners shall have regard to the need –
(c) to apply the principles of justice and fairness
203: Duty of Commissioners
(1) The Commissioners shall exercise the powers conferred by section 204 of this Act with a view to securing that the statutes of each qualifying institution include-
(c) provision establishing disciplinary procedures determined by the Commissioners for dealing with any complaints made against any member of the academic staff relating to his appointment or employment;
(d) provision establishing procedures determined by the Commissioners for hearing and determining appeals by any members of the academic staff who are dismissed or under notice of dismissal […]or who are otherwise disciplined; and
(e) provision establishing procedures determined by the Commissioners for affording to any member of the academic staff opportunities for seeking redress for any grievances relating to his appointment or employment.
(2) No provision such as is mentioned in subsection (1)(a) [redundancy] or (b) [good cause] above which is included in the statutes of a qualifying institution by virtue of section 204 of this Act shall enable any member of the academic staff to be dismissed unless the reason for his dismissal may in the circumstances (including the size and administrative resources of the institution) reasonably be treated as a sufficient reason for dismissing him.
Articles of Government
In exercise of the powers conferred upon it by section 125 of the Education Reform Act 1988, the University Higher Education Corporation makes the following Articles of Government in accordance with which the University shall be conducted:
2.1 The University shall be conducted in accordance with the provisions of the Education Acts 1994 to 1993, any subsequent Education Acts, any relevant regulations, orders or directions made by the Secretary of State, or by the Privy Council, and subject thereto, in accordance with the provisions of the Instrument, these Articles and any rules or bye-laws made under these Articles.
3.1 The Board of Governors shall be responsible for:
(a) the determination of the educational character and mission of the University and for oversight of its activities;
(d) the appointment, grading, suspension, dismissal and determination of the pay and conditions of service of the holders of senior posts
9.3 The Board of Governors shall ensure that there are suitable arrangements for
enabling the members of staff of the University to raise matters of proper concern to them at all levels in the University.
10.2 The Principal, or in the absence of the Principal the Deputy Director, may suspend from duty, with pay, any member of the staff of the University, other than the holder of a senior post, for misconduct or other good or urgent cause.
Provisions by the Commissioners (Board of Governors) re. Education Reform Act
Staff Disciplinary Procedure
1. Investigation
1.1 Disciplinary action cannot be taken until a case has been carefully investigated, and all the relevant facts gathered by the appropriate manager in liaison with a senior member of staff in the Personnel Department.
1.2 Where it is considered appropriate to suspend a member of staff while a case is being investigated, this must be in accordance with the University’s agreed procedures for the suspension of staff […].
1.3 Examples of outcomes of such an investigation are:
(i) to resolve the issue without the need to take further action;
(ii) to arrange advice, support and/or training in an attempt to resolve the problem without recourse to the disciplinary procedure;
(iii) to issue an informal warning which is not part of the disciplinary procedure. It will, however, be recorded and a copy placed on the individual’s personal file;
(iv) to arrange a disciplinary hearing.
Option (iv) should only be pursued if it is inappropriate to deal with the issue under options (i), (ii) or (iii).
2.2 [Principles] No disciplinary action will be taken against a member of staff until a full investigation has been carried out. The nature of the breach of discipline must have been made known and the individual given the opportunity to state his/her case prior to any decision being made. The investigation does not form part of the disciplinary procedure. Its purpose is to gather the relevant facts to determine the most appropriate course of action, which may, or may not, involve disciplinary action.
5.4 [Authority to take disciplinary action] The manager authorising the disciplinary action must not have been directly involved in the circumstances of the case.
Terms and Conditions of the Contract of Employment
Statement of Main Terms of Conditions and Employment, 23 July 1990:
1. [Your Appointment] You will be expected to attend such courses or conferences or to obtain such relevant professional experience as may be deemed appropriate in connection with your work.
Revised Statement of Main Terms and Conditions of Employment, 14 Oct 1991
9. [Duties and Hours of Work] Duties include teaching and tutorial guidance, research and other forms of scholarly activity…you are expected to work flexibly and efficiently…The make-up of your duties will be determined by your Head of Department in consultation with you…You will be expected to attend such courses or conferences or to obtain such relevant professional experience as may be deemed appropriate in connection with your work.
10. [Research and Scholarly Activity] Your research and scholarly activity will be principally self-managed.
17. [Disciplinary Procedure] The […] disciplinary procedure covers cases falling short of suspension or dismissal and gives you rights and safeguards including the right of appeal. If it is necessary for disciplinary action to be taken against you the steps to be followed will be those contained in the procedure.
18. [Suspension & Dismissal] If it is necessary to consider suspending or dismissing you, other than in accordance with a direction from the Secretary of State, the procedure to be followed will be in accordance with the Articles of Government.
202: The University Commissioners
(2) In exercising those functions, the Commissioners shall have regard to the need –
(c) to apply the principles of justice and fairness
203: Duty of Commissioners
(1) The Commissioners shall exercise the powers conferred by section 204 of this Act with a view to securing that the statutes of each qualifying institution include-
(c) provision establishing disciplinary procedures determined by the Commissioners for dealing with any complaints made against any member of the academic staff relating to his appointment or employment;
(d) provision establishing procedures determined by the Commissioners for hearing and determining appeals by any members of the academic staff who are dismissed or under notice of dismissal […]or who are otherwise disciplined; and
(e) provision establishing procedures determined by the Commissioners for affording to any member of the academic staff opportunities for seeking redress for any grievances relating to his appointment or employment.
(2) No provision such as is mentioned in subsection (1)(a) [redundancy] or (b) [good cause] above which is included in the statutes of a qualifying institution by virtue of section 204 of this Act shall enable any member of the academic staff to be dismissed unless the reason for his dismissal may in the circumstances (including the size and administrative resources of the institution) reasonably be treated as a sufficient reason for dismissing him.
Articles of Government
In exercise of the powers conferred upon it by section 125 of the Education Reform Act 1988, the University Higher Education Corporation makes the following Articles of Government in accordance with which the University shall be conducted:
2.1 The University shall be conducted in accordance with the provisions of the Education Acts 1994 to 1993, any subsequent Education Acts, any relevant regulations, orders or directions made by the Secretary of State, or by the Privy Council, and subject thereto, in accordance with the provisions of the Instrument, these Articles and any rules or bye-laws made under these Articles.
3.1 The Board of Governors shall be responsible for:
(a) the determination of the educational character and mission of the University and for oversight of its activities;
(d) the appointment, grading, suspension, dismissal and determination of the pay and conditions of service of the holders of senior posts
9.3 The Board of Governors shall ensure that there are suitable arrangements for
enabling the members of staff of the University to raise matters of proper concern to them at all levels in the University.
10.2 The Principal, or in the absence of the Principal the Deputy Director, may suspend from duty, with pay, any member of the staff of the University, other than the holder of a senior post, for misconduct or other good or urgent cause.
Provisions by the Commissioners (Board of Governors) re. Education Reform Act
Staff Disciplinary Procedure
1. Investigation
1.1 Disciplinary action cannot be taken until a case has been carefully investigated, and all the relevant facts gathered by the appropriate manager in liaison with a senior member of staff in the Personnel Department.
1.2 Where it is considered appropriate to suspend a member of staff while a case is being investigated, this must be in accordance with the University’s agreed procedures for the suspension of staff […].
1.3 Examples of outcomes of such an investigation are:
(i) to resolve the issue without the need to take further action;
(ii) to arrange advice, support and/or training in an attempt to resolve the problem without recourse to the disciplinary procedure;
(iii) to issue an informal warning which is not part of the disciplinary procedure. It will, however, be recorded and a copy placed on the individual’s personal file;
(iv) to arrange a disciplinary hearing.
Option (iv) should only be pursued if it is inappropriate to deal with the issue under options (i), (ii) or (iii).
2.2 [Principles] No disciplinary action will be taken against a member of staff until a full investigation has been carried out. The nature of the breach of discipline must have been made known and the individual given the opportunity to state his/her case prior to any decision being made. The investigation does not form part of the disciplinary procedure. Its purpose is to gather the relevant facts to determine the most appropriate course of action, which may, or may not, involve disciplinary action.
5.4 [Authority to take disciplinary action] The manager authorising the disciplinary action must not have been directly involved in the circumstances of the case.
Terms and Conditions of the Contract of Employment
Statement of Main Terms of Conditions and Employment, 23 July 1990:
1. [Your Appointment] You will be expected to attend such courses or conferences or to obtain such relevant professional experience as may be deemed appropriate in connection with your work.
Revised Statement of Main Terms and Conditions of Employment, 14 Oct 1991
9. [Duties and Hours of Work] Duties include teaching and tutorial guidance, research and other forms of scholarly activity…you are expected to work flexibly and efficiently…The make-up of your duties will be determined by your Head of Department in consultation with you…You will be expected to attend such courses or conferences or to obtain such relevant professional experience as may be deemed appropriate in connection with your work.
10. [Research and Scholarly Activity] Your research and scholarly activity will be principally self-managed.
17. [Disciplinary Procedure] The […] disciplinary procedure covers cases falling short of suspension or dismissal and gives you rights and safeguards including the right of appeal. If it is necessary for disciplinary action to be taken against you the steps to be followed will be those contained in the procedure.
18. [Suspension & Dismissal] If it is necessary to consider suspending or dismissing you, other than in accordance with a direction from the Secretary of State, the procedure to be followed will be in accordance with the Articles of Government.
Monday 10 September 2007
Problem 5: Dealing with a working trip organised by a senior academic within the terms and conditions of his/her contract, following normal practice
As Deputy Vice Chancellor (Deputy Director), Director of Staffing, you have been aware for some time that a Head of Department has been, and is, treating a senior academic unfairly. Indeed, you have already admitted in confidence that there is a lot that the University has to do in order to prevent a formal accusation of failing to protect the senior academic from bullying, harassment, victimisation and unfair treatment (confidential memo to the senior academic’s Head of Department, dated 6 Oct 1998).
The same academic has just engaged in a working trip (12-16 Oct 1998) which was set up within the terms and conditions of his/her contract, following normal practice and also in accordance with some unusual stipulations by his/her Head of Department (sent by email on 24 Sept 1998). The senior academic had also raised a complaint/grievance with you, with the support of the Union, about the inconsistent information and arbitrary stipulations he/she is receiving from the Head of Department in relation to the trip. The senior academic was informed between Wed. 7 Oct 1998 and Fri. 9 Oct 1998 that you had agreed for him/her to go ahead with the trip (no formal authorisation for such trips was, in any case, required). On 16 Oct 1998, the senior academic sent a fax to the Vice Chancellor detailing prospective collaborative work/ business in the light of meetings the academic had initiated and at the behest of the Vice Chancellor’s secretary. Prior to sending the fax, the senior academic had also set up a meeting with the Vice Chancellor for the 20 Oct 1998. As Deputy Vice Chancellor, you also receive a copy of this fax from the Vice Chancellor and are asked for your advice on matters.
Unbeknown to the senior academic, you have received a note from the academic’s Head of Department sent in the academic’s absence on 12 Oct 1998 and without any warning to the senior academic, stating that he/she is “absent without authorisation”. Furthermore, in spite of your and his prior knowledge that the university has a lot to do to avoid a formal accusation of failing to protect the academic from bullying, harassment and unfair treatment (6 Oct 1998), the senior academic’s Head of Department has recommended in his note of 12 Oct 1998 that “disciplinary proceedings on the grounds of gross professional misconduct” are instigated.
As Deputy Vice Chancellor (Deputy Director), Director of Staffing, how would you proceed? Would you:
a) seek to protect the senior academic from further harm in whatever way seems appropriate
b) set up a meeting with the senior academic on his/her return to find out what is happening
c) diffuse the situation immediately by the most constructive means and seek further information ahead of a meeting with all concerned
d) set up a meeting with the senior academic and others to clarify misunderstandings, misinterpretations, inconsistencies and arbitrariness in policy and practice
e) adopt the ostrich position
f) suspend the senior colleague on normal pay and conditions until you’ve collected all evidence
g) suspend the senior colleague on normal pay and conditions and inform the Board of Governors of your intent
h) suspend the senior colleague on normal pay and conditions with immediate effect, before hearing him/her and without allowing him/her access to his/her office or colleagues
i) intimidate and harm the colleague by suspending the senior colleague on normal pay and conditions with immediate effect, without any warning and before hearing him/her and without allowing him/her access to his/her office or colleagues, and without informing the Board of Governors, and pending a disciplinary hearing for allegedly being “absence without authority”
The same academic has just engaged in a working trip (12-16 Oct 1998) which was set up within the terms and conditions of his/her contract, following normal practice and also in accordance with some unusual stipulations by his/her Head of Department (sent by email on 24 Sept 1998). The senior academic had also raised a complaint/grievance with you, with the support of the Union, about the inconsistent information and arbitrary stipulations he/she is receiving from the Head of Department in relation to the trip. The senior academic was informed between Wed. 7 Oct 1998 and Fri. 9 Oct 1998 that you had agreed for him/her to go ahead with the trip (no formal authorisation for such trips was, in any case, required). On 16 Oct 1998, the senior academic sent a fax to the Vice Chancellor detailing prospective collaborative work/ business in the light of meetings the academic had initiated and at the behest of the Vice Chancellor’s secretary. Prior to sending the fax, the senior academic had also set up a meeting with the Vice Chancellor for the 20 Oct 1998. As Deputy Vice Chancellor, you also receive a copy of this fax from the Vice Chancellor and are asked for your advice on matters.
Unbeknown to the senior academic, you have received a note from the academic’s Head of Department sent in the academic’s absence on 12 Oct 1998 and without any warning to the senior academic, stating that he/she is “absent without authorisation”. Furthermore, in spite of your and his prior knowledge that the university has a lot to do to avoid a formal accusation of failing to protect the academic from bullying, harassment and unfair treatment (6 Oct 1998), the senior academic’s Head of Department has recommended in his note of 12 Oct 1998 that “disciplinary proceedings on the grounds of gross professional misconduct” are instigated.
As Deputy Vice Chancellor (Deputy Director), Director of Staffing, how would you proceed? Would you:
a) seek to protect the senior academic from further harm in whatever way seems appropriate
b) set up a meeting with the senior academic on his/her return to find out what is happening
c) diffuse the situation immediately by the most constructive means and seek further information ahead of a meeting with all concerned
d) set up a meeting with the senior academic and others to clarify misunderstandings, misinterpretations, inconsistencies and arbitrariness in policy and practice
e) adopt the ostrich position
f) suspend the senior colleague on normal pay and conditions until you’ve collected all evidence
g) suspend the senior colleague on normal pay and conditions and inform the Board of Governors of your intent
h) suspend the senior colleague on normal pay and conditions with immediate effect, before hearing him/her and without allowing him/her access to his/her office or colleagues
i) intimidate and harm the colleague by suspending the senior colleague on normal pay and conditions with immediate effect, without any warning and before hearing him/her and without allowing him/her access to his/her office or colleagues, and without informing the Board of Governors, and pending a disciplinary hearing for allegedly being “absence without authority”
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