Oxford UCU response to the Consultation on possible revisions to Statute XII
On Wednesday 26 February 2014 the Oxford University Gazette (Supplement (1) to Number 5051. Volume 144) published a Consultation on possible revisions to Statute XII. This ‘initial consultation’ seeks views on the ‘overarching principles for possible reform’ and is open until 4 June 2014.
Oxford UCU immediately convened a small working group to engage in discussions with senior University personnel officers, and to consult the Oxford UCU membership by means that have included a general meeting and a survey. On Tuesday 7 March, at a well-attended Extraordinary General Meeting, Oxford UCU adopted the following motion nem. con.:
“Oxford UCU finds that Statute XII has offered, and continues to offer its members, following the abolition of academic tenure in the Education Reform Act 1988, a high degree of protection on key employment issues, including redundancy and disciplinary matters.
Further, Statute XII helps sustain the high trust and high commitment style of employee relations, which Oxford UCU values, and also sits comfortably alongside the University`s democratic scheme of governance.
Oxford UCU therefore strongly opposes any move by the University to deprive all staff or certain categories of staff of the protection currently afforded by Statute XII and instructs the Oxford UCU Committee and Negotiators to take all reasonable steps to safeguard the protections that the Statute presently guarantees to all staff of G6 and above in accordance with the principles of justice and fairness.”
The consultation paper opens with a Summary, and then identifies four aspects of the Statute for consideration. This response discusses the content of the Summary, and then takes each for the four aspects in turn.
The Summary (Consultation paper, paragraphs 1 – 4)
Paragraph 1 describes the coverage of Statute XII, stating that it ‘governs major aspects of the employment by the University of ‘academic staff’’.
The Summary has nothing to say about the statutory and political context from which Statute XII arose (although there are references later on in the paper to the Employment Rights Act 1996: see comments on Timing of and reasons for the consultation, on p.2 below). It is important to understand that Statute XII had its origins in the Education Reform Act 1988 (the ERA 1988), which took away academic tenure in UK universities from academics with effect from 20 November 1987 (the date of publication of the Education Reform Bill). The ERA 1988 (at s.203) requires the University Commissioners to secure that the statutes of each qualifying institution include provision for dismissal of academic (including academic-related) staff for redundancy or good cause and for disciplinary procedures. In carrying out that duty, the Commissioners must have regard to the need (ERA 1988 s.202):
(a) 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;
(b) to enable qualifying institutions to provide education, promote learning, and engage in research efficiently and economically; and
(c) to apply the principles of justice and fairness. [ERA 1988 s.202]
These requirements are the three ‘guiding principles’ of Statute XII. The Statute does not prevent dismissals or disciplinary action against those whom it covers; it sets out the rigorous standards that rightly, in Oxford UCU’s view, should be met in such cases.
It is significant that the consultation does not explain the source of the guiding principles, because without understanding their source it is difficult fully to understand their purpose. The protection of Statute XII was introduced in response to a change in the law in the 1980s, and while there have been developments in employment law since that time, ss.202, 203 and 204 of the ERA 1988 are still in force. The protection afforded by Statute XII is therefore still relevant, and the fact that the authors of the consultation paper, apparently, consider that its protection might still reasonably be afforded to ‘traditional academics’ (consultation paper, paragraph 8) is a tacit admission that the improved ‘protection in line with new legislation’ is insufficient at least for some categories of staff.
Timing of and reasons for the consultation
In paragraph 3 of the consultation paper, the Summary states that Statute XII has not been revised ‘since it first came into effect over 21 years ago’ and that it ‘is not fully aligned with current employment law’. The employment law statute that is subsequently cited twice (at consultation paper, paragraph 12) is the Employment Rights Act 1996, most sections of which commenced on 22 August 1996, that is to say, nearly 18 years ago.
This must give rise to the question, ‘why now?’ There have, of course, been developments in UK employment law since the ERA 1988 entered into force, but it is not easy to understand why it has taken the University 18 years to notice, for example, the Statute’s silence ‘on dismissals on the ground of ‘some other substantial reason’ (SOSR) as set out in the [Employment Rights] Act ’. This seems to be a reference to s.98(1)(b) of the Employment Rights Act 1996 which entered into force in August 1996.
The Employment Rights Act 1996 (s.98) allows five potentially fair reasons for dismissal: capability, conduct, redundancy, statutory requirements and ‘some other substantial reason’, and it is the last of these that appears to concern the University. Halsbury’s Laws of England 5th ed. v.40 para.723 notes that: ‘Dismissal for 'some other substantial reason' is a wide, residual category ... and it is not possible to give an exhaustive list of matters which may come within this category’. The term is not defined by statute and there is no statutory guidance on its meaning. It is therefore a matter of concern that the University should seek to introduce this ‘catch all’ category, which is not included in the ERA 1988 (although it could have been – see below), and bring it within the Statute as a potential reason for fair dismissal.
Although the Employment Rights Act 1996 post-dates the ERA 1988, the Employment Protection Consolidation Act 1978 also included, at s.57(1)(b), as a potentially fair reason for dismissal: ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held’. It was, therefore, open both to those that drafted the ERA 1988 and those that drafted Statute XII to include ‘some other substantial reason’ as a potentially fair reason for dismissal, but they did not do so. Therefore, if it is a problem that the Statute ‘no longer accurately reflects the legal position’ (consultation paper, paragraph 12), it is not a new problem, and it is surprising that the University only now feels the need to address it.
Oxford UCU has asked University Personnel officers why it is felt necessary to consult on possible revision of the Statute at this particular time. Although the consultation paper seems to imply that it is in response to legal developments, the answers given have not in fact been connected with legal change. Instead, Oxford UCU has been informed verbally that over the last decade there has been a ‘growing unease’ on three counts: (1) concern about the ‘balance of Statute XII’, arising from ‘experience of the Statute XII process’; (2) pressure to reform Statute XII from newcomers to the University and external advisers, and (3) concerns that two of the groups of staff covered by it (that is to say research staff and administrative staff) have grown in size disproportionately when compared with the size of the academic staff group as defined by Statute XIV (7).
It is not clear which group or groups have experienced this ‘growing unease’ or had (presumably negative) ‘experience of the Statute XII process’, but it would be reasonable to assume from these explanations that, at least in part, the desire to change Statute XII derives from the personal experience of senior managers who have found that the operation of procedures under Statute XII has in some way impeded their ability as managers to carry out their wishes in one or more specific instances.
concern about the ‘balance of Statute XII’
It appears then that the move for change may be driven by the experience of a number of managers in particular cases involving procedures under the Statute. Exactly how many cases is uncertain, because statistics on cases are not collected or collated centrally, but anecdotal evidence, for which Oxford UCU thanks University Personnel officers, suggests that one case went to the Visitatorial Board ‘last year’. It is thought by University Personnel that there are typically one or two cases each year that reach the Visitatorial Board and ‘slightly more’ that go to the University Appeal Court. Oxford UCU asked University Personnel about the cost of these cases, but University Personnel does not hold that information. Oxford UCU is concerned that the desire for change arises at least in part from the personal experience individuals, and from anecdotes, assumptions and conjecture, which, so far are as Oxford UCU is aware, are not supported by clear evidence.
pressure from newcomers and external advisers
It is highly significant that it appears that the consultation on revision of Statute XII has also in part been brought about through the concerns of newcomers and external advisers. It is not surprising that managers who have experience of organizations that operate on the basis of very different human resource models should find Statute XII’s provisions unusual. However, Statute XII is designed to be exceptional and to meet the very specific needs of the University. Following the abolition of academic tenure by the ERA 1988, Statute XII intentionally provided, and continues to provide, a higher degree of protection on key employment issues than is the case in organizations that are governed on different principles, and a level of protection that goes beyond that provided by the Employment Rights Act 1996. The fact that staff relatively new to the University may find Statute XII perplexing is not in itself a reason either to dilute it or to remove its protections from certain categories of staff.
It should also be noted that all of the Russell group of research intensive universities in the UK have statutes that are broadly comparable to Statute XII, including the provision that employment procedures for academic and academic-related staff are robust and deliver an enhanced level of protection in comparison to other employees (please see comments on Aspect One (consultation paper, paragraph 8), below).
concern about extent of coverage of Statute XII
The third concern that seems to lie behind the consultation is the extent of the coverage of Statute XII. The table entitled Coverage of Statute XII in the Annexe to the consultation paper states that while there are only 1,722 ‘academic’ staff, there are on the other hand a further 7,161 researchers and administrative staff, all of whom are also protected by Statute XII.
These figures do not, of course tell the full story, but in the context of the consultation paper they imply that there is a small core of academic staff within the meaning of Statute XIV (7) surrounded by a vast array of ancillary staff who enjoy the same employment rights as the ‘traditional academics’. Aside from the question of whether or not research and administrative staff need the protection of Statute XII (on which see more below, under Aspect One (consultation paper, paragraph 8) – First Guiding Principle), this tabular presentation is misleading.
According to the most recent figures provided to Oxford UCU in confidence by University Personnel, which provide a more detailed breakdown by academic role, grade, staff group and contract type, it is not the case that those staff engaged in research, learning and teaching are far outnumbered by staff of G6 and above who are not so engaged; even if it is considered that some staff do not contribute to the University’s academic output (and Oxford UCU disputes that), the position is in fact quite the opposite.
It is not clear how further segmenting the workforce would fit with the aims of the University’s Strategic Plan, published in May 2013. For example, the commitments to ‘work to develop the integration of research staff within the collegiate University’ and to ‘ensuring that those involved in University governance are as representative as possible of the full range and balance of University staff’ seem unlikely to sit easily with the withdrawal of key protections from large numbers of staff.
Final comments on the Summary (paragraphs 1 – 4)
Finally, it is worth noting the statement at the foot of paragraph 4 of the consultation paper: ‘The Committee’s interest in revising the Statute is not driven by any preconceived agenda for changes to employment within the University’. This is, no doubt, intended to be reassuring, but it is also puzzling. It is hard to understand how those consulted can give a reasoned endorsement of the principle of change without knowing what the alternatives might be. We are in effect being asked to give a view without having any information on the possible overarching changes to management principles and practice that could result from the outcome of the consultation. If Personnel Committee really has no such alternative management principles in mind, it raises the question of whether the main driver for the consultation is simply a relatively small number of specific personnel management difficulties, which might be addressed by other means.
Comments on Aspect One (consultation paper, paragraph 8)
The first point on which the consultation paper seeks comment is ‘on whether the existing coverage of Statute XII should be reduced and if so, which staff groups should most appropriately be included’.
The ERA 1988 at s.203(4) states that ‘Any reference in this section to academic staff includes a reference to persons whose terms of appointment or contracts of employment are, in the opinion of the Commissioners, so similar to those of academic staff as to justify their being treated as academic staff for the purposes of this section’. The ERA 1988 therefore treats both the group that the consultation paper designates ‘traditional academics’ and academic related staff as a single body of University employees (this is confirmed by the General Note in the annotation to ERA 1988 s.203 in Current Law Statutes Annotated 1988).
This is in line with UNESCO’s definition of ‘higher education teaching personnel’, which includes ‘all those persons in institutions or programmes of higher education who are engaged to teach and/or to undertake scholarship and/or to undertake research and/or to provide educational services to students or to the community at large’. The UNESCO Recommendation, which covers all ‘higher education teaching personnel’ as defined above, gives international standards for universities enacting its principles. Despite changes in governance arrangements in pre-1992 universities during the last decade, all the United Kingdom’s pre-1992 universities’ statutes have retained the link between academic and academic related staff, with the result that academic related staff continue to be covered by their statutes. The consultation paper appears to consider the possibility of adopting a post-1992 university governance model, which could offer less employment protection to at least some groups of staff than is offered by its competitors, both at home and overseas. This may not sit easily with Commitment 10 of the University’s Strategic Plan 2013-2018: ‘To recruit and retain high calibre staff from across the world’.
The consultation paper is clear that ‘traditional academics’ and ‘senior research staff’ should continue to be afforded special protection ‘in order to safeguard academic freedom’. However it suggests that those ‘whose role is to provide specialist support such as administrative staff, librarians, computing staff and other professional and technical specialists, should be treated on a par with all other non-academic staff’, stating that ‘For these staff, there is no special need relating to academic freedom’ (consultation paper, paragraph 8). This implies a number of assumptions.
First guiding principle
Firstly, it seems to imply that the only or main justification for coverage by Statute XII is the need to protect academic freedom. The guiding principles for Statute XII, which derive from s.202 of the ERA 1988, do not refer to ‘academic freedom’. Rather, the ERA 1988 and the Statute speak of ‘freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions’. This, arguably, applies to a somewhat broader range of professional, intellectual or academic activities than the term ‘academic freedom’ as used within the context of paragraph 8 of the consultation paper implies.
Further, even if it is accepted that this implicitly narrow application of the concept of academic freedom is the sole or main justification for staff being covered by Statute XII, the consultation paper seems to assume that professional and administrative staff are neither engaged in academic activity on their own account, or directly or actively engaged with or contributing to the University’s academic output.
This is demonstrably incorrect as the results of the survey conducted by Oxford UCU shows (see the Appendix to this document). Members of the University’s research and administrative staff teach, research, write and also publish in both professional and academic fora, in addition to directly supporting the University’s research output. It should be noted, as an example, that the Bodleian Libraries Implementation Plan 2013‐2016 for the Bodleian Strategic Plan 2013-2016 includes this action point:
18.2 Increase the number of staff submitting papers to journals and conferences, writing books and book chapters and other forms of professional engagement.
Furthermore if the apparently narrow interpretation of the concept of academic freedom that is implied in the consultation paper is opened up to reflect the actual wording of the first guiding principle of Statute XII, it is self-evident that all ‘academic staff’, including academic related staff, are likely, at least from time to time, to need the freedom to ask questions and express opinions in the course of their work that may be controversial or unwelcome to the ears of management and others. This freedom is fundamental to the effective functioning of a self-governing community, such as the University of Oxford. To deprive all or some of the University’s academic related staff of the protection that enables them to speak frankly and honestly on matters of importance to the University risks undermining the integrity of the institution itself.
Second guiding principle
Secondly, Statute XII rests on not one, but three guiding principles, the second of which clearly applies to the case of academic related staff, in that it is self-evident that they are, as a body, involved in the University’s endeavour to ‘provide education, promote learning, and engage in research efficiently and economically’. Without the support of technical and professional staff ranging from librarians to accountants, or of departments ranging from the Estates Directorate to IT Services, none of these things could happen. There is no evidence that depriving such staff of the protection of Statute XII would enhance their collective performance, but there can be little doubt that it would in some circumstances inhibit their freedom to speak and act freely as individuals on those professional matters for which by reason of their expertise they were actually employed.
Third guiding principle
As for the third guiding principle (‘to apply the principles of justice and fairness’) it is difficult to see how adherence to this principle can be reconciled with a move to segment the workforce on the basis of inaccurate assumptions about the nature and value to the University of the work of certain categories of staff.
Aspect two (consultation paper, paragraph 9)
The second aspect on which the consultation paper seeks comment is on the ‘desirability of simplifying procedures under the Statute’ (paragraph 9). Two ‘obvious examples’ are cited: the Visitatorial Board procedures and the Appeals procedure. As noted above, University Personnel believes that there are just one or two cases heard before the former each year, and slightly more before the latter.
The consultation paper states that the ‘Statute specifies procedures that are disproportionate and overly complex’.
Concerns about Disproportion
With regard to the first concern, of disproportion, the consultation paper states that the composition and size of the Visitatorial Board is ‘unusual for an internal disciplinary body’. However, although the Chairman will be ‘a barrister or solicitor of at least five years’ standing or a person who has judicial experience’ (Statute XII 14(2)) the other Visitatorial Board members are members of the University, selected from a panel elected by Congregation. It seems reasonable that such a Board should be chaired by a lawyer of some seniority. Given that it is the Board’s role to hear cases involving potential dismissal for good cause, it is highly desirable in the interests of justice that it should include both judicial expertise and members drawn from the academic body of the University.
As for University Appeal Court, the consultation paper specifically suggests that the ‘sequence of seniority of lawyers in the successive opportunities for appeal’ may be disproportionate, and points out that the decisions of this Appeal Court can then be challenged in an Employment Tribunal. The point that the consultation paper appears to make is that the University Appeal Court panel consists of external lawyers each of whom is or has been an Appeal or High Court judge, or a Q.C. of at least six years’ standing. The consultation paper implies that it is disproportionate to introduce a lawyer of this standing at this stage of the procedure, when the next stage may be a hearing before an employment judge sitting alone in an Employment Tribunal.
Like the Employment Tribunal, the University Appeal Court may consist of just one member (Statute XI 17(3): ‘A sitting of the Appeal Court shall be sufficiently constituted by one of its members sitting alone’). In view of the fact that cases may come to the Appeal Court from the Visitatorial Board, it is reasonable that members of the Appeal Court panel should be of at least equal standing with the chairman of that Board.
It should also be noted that any internal employment procedures for any employer can be subject to challenge in an Employment Tribunal. However, having thorough internal employment procedures minimises the risk that an Employment Tribunal could make a judgment that the University of Oxford has acted outside the range of ‘reasonable responses’.
Concerns about Complexity
With regard to second concern, that of complexity, the sequence of events set out in Part D of Statute XII for proceedings on discipline, dismissal and removal from office under Stages 1 and 2 (oral warning and written warning) is straightforward. It is true that Stage 3 (Appeals) introduces a higher level of complexity. However, this is partly because there are several points under Part D, at 19(3), 19(6)a and 19(6)c, at which the Vice-Chancellor may decide or agree not to refer a case to the Visitatorial Board. While this appears to make the procedures more complex, surely it is desirable that there should be opportunities within the procedure to resolve cases, if possible, without referring them to the Visitatorial Board.
The consultation paper raises other concerns that should be challenged.
Firstly, there is the statement that ‘minor departures’ from the regulations for the Board ‘can give rise to challenges on technical rather than on substantive grounds’, but surely this is part and parcel of any legal or quasi-legal process and it is the business of the University to follow its own procedures correctly.
Secondly, there is the comment that ‘This [Appeal Court] process typically takes many months to produce a ruling’. The consultation paper gives no further explanation, and UCU regards a conscientious analysis of the reasons for such delays as being a vital prerequisite to ensure that any amendments considered are based on evidence. While it is easy to blame procedures for such delays, it is also likely that problems are compounded by a lack of training and resources available to managers or administrators responsible for personnel management, and consequent or associated poor organisation.
Aspect three (consultation paper, paragraph 10)
The consultation paper seeks comment on the desirability of revising the Statute to improve the clarity of its provisions, and gives as an example the two routes for dealing with medical incapacity. Oxford UCU believes that, while greater clarity in determining which would be the correct route in any particular case is desirable, this does not necessarily require revision of the Statute, as it could be achieved through an agreed operational guideline to be applied in all cases. For example, if a case involved ill health, or a claim from the employee that he or she had a disability (as defined by the Equality Act 2010), the operational guideline could require that this should be referred to the Medical Board rather than to the Visitatorial Board.
Aspect four (consultation paper, paragraph 11)
The consultation paper seeks comment on the desirability of revising the procedure under the Statute for addressing grievances. The paper actually concedes that ‘grievance policies are in place [in the University] to enable cases to be addressed at local level’. The paper offers no evidence in support of its claim that ‘the Statute’s grievance procedure encourages swift escalation’, and if that were the case, surely, it would be an incentive to all parties to reach a resolution through informal processes or mediation.
Oxford UCU considers that some, at least, of the concerns about Statute XII mentioned in the consultation paper have arisen as the result of poor management practices. Oxford UCU notes that there are instances in which some of its members feel that they have suffered or experienced difficulties as a result of the University’s reluctance to enforce its own procedures.
Employment law (consultation paper, paragraph 12)
The consultation paper does not seek comment on its recommendation in paragraph 12 that the Statute be updated to reflect current employment law, but as has been argued above, the paper has failed to make the case for this. The specific example offered (the Statute’s silence on dismissals on ground of ‘some other substantial reason’) has been shown to be a very weak one. The other example offered is one in which continued employment would contravene immigration rules and needs further explanation. It is not clear how the provisions of Statute XII would compel the University to employ a member of staff unlawfully.
The University is consulting on matters of principle. Oxford UCU, having consulted its members, takes the view that as a matter of principle it cannot support any move on the part of the University to withdraw the protection of Statute XII from some or all of the staff that it represents. Such a step would also go against national UCU’s position, which is in line with the UNESCO Recommendation, that employers should implement policies equally across all staff categories to ensure fair and equitable treatment for every member of the academic team of which the academic related staff of a University is a part.
Further, while acknowledging that the procedures specified under Statute XII in relation to dismissal, discipline and grievance procedures are rigorous, Oxford UCU will, as a matter of principle, resist any proposals that might threaten the freedom of academic (including academic related) staff ‘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’.
Oxford UCU consulted its members to seek views on the matters of principle set out in consultation paper by means of an electronic survey that was open from 1 – 13 May 2014. The survey was anonymous, but set to preclude the submission of more than one response from each IP address. There was nothing in the pattern or nature of the responses to suggest that there had been multiple submissions from any individual or individuals (by logging on to multiple pcs).
It was (intentionally) possible to tick multiple boxes, so some percentages add up to more than 100. It was possible to skip any of the questions and there were free-text comment boxes. Some members also sent email responses and comments either in addition to or instead of completing the survey. Comments are not included here, in order to protect the anonymity of those who responded to the survey.