Thursday, 10 March 2011

Dear Mr Kafka...


In lieu of the seven percent solution

Like most people, I've had my share of joints. The Sunday ones which are a bit of a rarity these days. The type that are immensely satisfying when they slide together like... well a dovetail. The big fat ones that have on a few occasions led to a recurring theme many readers will be familiar with: a floor, a foetal position, a green face, a swift conversion to the nearest available religion in order to allay the creeping certainty that your increasingly laboured insufflations are to be your last, a desperate attempt to retain some semblance of dignity, a rigid repudiation of an almost canonical desire to expel your full stomach content (including the lining) at a velocity close to light speed over the nearest excuse for a threadbare Wilton. For that reason I've decided to eschew the latter in favour of a churchwarden pipe and a forty five pound a day crack habit. I do of course jest. But I do take some considerable enjoyment from a pinch or three of rough Kentucky Nougat shag stuffed almost to overflowing into a polished briar bowl.

But of late it's the aching ones that have insinuated themselves into the everyday. Despite being rather irksome, these I can deal with utilising the oft-used traditional remedy of swearing. Or should I say I did, as my right foot's this week taken out a grievance against my mouth and my jaw's been suspended pending a disciplinary investigation. This is of course silly. But on a more serious note - and I hope this article can help others in a similar situation avoid pitfalls - it deals with a novel type of joint that has inculcated itself into my routine far more insidiously than the odd appalling rheumatic twinge in a right hallux. I have unwittingly become habitué to another abhorrency, a type of joint that is I believe peculiar to either Employment Tribunals (or possibly other matters of a legal nature). The particular joint to which I refer is in some circles known as the 'Joint Bundle'. A definition and an explanation is in order.

The new kid in town

For those new to this blog, I am currently taking my former employer - the University of Salford - to an employment tribunal for unfair dismissal. I lectured in International Studies and was the branch secretary for the UCU. I was dismissed in 2009 for allegedly bullying and harassing two members of staff through writing satirical exposes based on the former VC's monthly electronic newsletter. This is the general context. 

Back to matters in hand. The 'joint bundle' for an Employment Tribunal (ET) consists of all the documents that both parties wish to be entered as evidence. As the employer most usually has the resources available, it is expected that they will collate all documents and order them date-wise into the bundle which is then provided to both parties as well as one each for the three Tribunal panel members. In order to ensure that this is achieved in a timely fashion, Case Management Orders are provided by the Tribunal which must be rigidly adhered to on pain of circumcision. I jest with ye further. Breaching the deadlines within CMO's will largely leave one's foreskin intact but can be punished by a not inconsiderable fine and possible forfeit of your claim. For anyone who is moderately organised, this all seems reasonable and easily manageable... or so it should be. As one might expect, an Employment Tribunal and all the concomitant preparations is a highly charged affair and as such, the joint bundle is a highly contested arena as is the issue of document disclosure.

That absurdity of a beard'll not get ye past us. Begone ye fecker!
Document disclosure or lack thereof

One can almost taste the next salty statement issuing forth from your collective lips - how does one know all the documents available have been disclosed by the employer? Well the short answer is that one doesn't. An example may enlighten. There is no provision in the University of Salford Disciplinary Procedure for disclosure of documents which by any stretch of the imagination places any alleged miscreant at a distinct disadvantage. The Procedure at 3.1.5. states that 'members of staff have a right to':

be treated fairly and consistently. This includes representation, the right of appeal, and the right to be provided with all the evidence and relevant documentation prior to attending a disciplinary hearing.(1)

The sting in the tail here is the word 'relevant'. And who decides what's relevant? Hazard a guess. Clearly, an allegation of bullying and harassment is a serious matter so there is one document that should be disclosed to you. It's called the complaint.

Where is the complaint?

Only an unreconstructed dolt would welcome the idea of being treated unfairly and inconsistently. But it is entirely within the realms of possibility that one can be treated consistently yet unfairly. The two are not necessarily correlates. To elucidate. Let's explore a hypothetical case such as my own.* 

You've been accused of bullying or harassing two people by writing about them in a satirical manner. Yet the alleged 'victims' of the bullying or harassment haven't made any complaint against you. There's no record of any complaint. Neither have they made a witness statement to HR regarding the alleged bullying or harassment. It seems that no one on the employers' side has thought it necessary to invite the alleged 'victim[s]' to an informal or formal meeting to discuss the alleged bullying. No note of such meeting exists. Indeed so important is this issue of alleged bullying and harassing that the investigating manager doesn't think it's necessary to interview the two 'victims' or take statements from them.

And just to reassure you that you've not been engulfed by a particularly malevolent universal parallelogram, the non-existence of any complaint has been confirmed from the horses mouth so to speak. Both the Chair of the Disciplinary Panel Mr Philip Hopwood and the former executive director of finance Mr Simon Attwell (the chap who chaired this writer's appeal hearing against dismissal) admitted under the withering cross examinatory skills of the 'persistent' Mr Eric Longley during last week's Employment Tribunal, that there were indeed no complaints. You see it's all very consistent.

It's in the Code

The UoS Code of Practice for Dealing with Harassment and Bullying is quite clear on this matter:

"... complainants must understand and accept that copies of all notes and correspondence concerned with the complaint will be given to the alleged harasser at his/her request."

It goes on to say that:

Formal resolution may be pursued where the individual regards attempts at informal resolution as inappropriate, or informal attempts to resolve the matter have been unsuccessful. The formal complaint should be made in writing to the Head of School... [i]t must be understood by the complainant that any such formal complaint, and any further written communications will be passed to the alleged harasser... [o]nce an individual has made a formal complaint he/she is entitled to expect managers to instigate a formal investigation... [n]o further action will be taken without the consent of the individual concerned. The matter will be dealt with as confidentially as possible but in some cases the allegation may be so serious as to require immediate action (such as invoking the Disciplinary Procedure or involving the police)...(2)

Where are the witnesses?

So you decide that as no verbal or written complaint has been forthcoming as per the University's own Code, nor a witness statement provided to you laying out any complaint, it's reasonable enough to take the initiative and ask the alleged 'victim[s]' to testify at your forthcoming disciplinary hearing to explain how they were bullied and harassed. They refuse. You've also written in a satirical manner about two Vice Chancellors so you invite them to give evidence as to how they've been bullied and harassed but oddly enough they also refuse. They didn't make a complaint either but clearly a lack of complaint is no barrier to being designated a bully and harasser despite what the employer's own rules say. You attempt to follow this thread of Carrollian logic to its denouement but you immediately conclude that maybe you should exchange the daily crack habit for the more mundane and profitable pastures of an extended LSD induced feedback loop.

My dear chap, like your arse, you'll find the document referred
to down there in two parts
Au revoir jus-naturale?

Now except in the realms of a piece of fiction written by a chap called Kafka, one might imagine it might be quite difficult building the meanest sort of defense against allegations of bullying and harassment where complaints do not exist. By any sense of what's known in the trade as fairness or 'natural justice', a reasonable person might have discerned in the distance the muted peal of an alarm bell or two or at least the cordite stench of a latent structural paradox in crisis. Given this elemental Gordiana, you find that inevitably, the bony finger of unemployment beckons.

Dear Dr... I'm afraid it's irrelevant... irrelevant... irrelevant...

If one is experiencing this kind of difficulty in the run up to and during a disciplinary hearing, it follows that once lawyers are involved (on their side as one is hardly in a position to afford legal representation) the job becomes incrementally arduous. The alleged perpetrator of vileness (the Conscientious Claimant) wants to collate as much documentary evidence as possible but the employer is under no obligation to make documents (other than those used in the disciplinary process) available. One can seek through the Tribunal a Document Disclosure Order but they're about as likely to be granted as a back-dated UN resolution for the invasion of Iraq.

You could elect to utilise the Freedom of Information Act which is an essential tool. It's also largely useless tool. If one's employer is a public authority, they can refuse any of your FOIs on the grounds of say vexatiousness and like a brown immovable thing covered in bark, one is largely stumped. However, there is a small hint of daylight in this crepuscular envelope. It's known as a Subject Access Request which resides under the glorious aegis of the Data Protection Act 1998. I've had occasion to make two SARs and some very interesting documentation and emails have come to the fore.

It's not uphill but it is a shitty job all the same
Even if you manage to lay your hands on the documents through friends and the odd voluntary disclosure of a ream of emails by some unknown individual, there now ensues a battle for relevancy. You receive documents under the Data Protection Act and some are shall we say discommodious to say the least. Like an over-extended ball-bag, this leads to much toing and froing. Even within the Tribunal  this contestation continues. The Conscientious Claimant says that the extensive series of emails between the above two members of staff that were received anonymously, do indeed indicate a close friendship and should therefore go in your 'unagreed' bundle. The Respondent's barrister say they're not relevant and objects to the Tribunal judge a little too successfully. The Conscientious Claimant asks that a recently received copy of a rather interesting report into appointments in a business school should go in. The Respondent's lawyers again oppose its inclusion again stating it's not relevant. Yep, that one's also ruled out. You think this rather odd as you'd sort of mentioned both these issues in a highly satirical publication or two, which played no small part in raising the two issues to the fore in the first place.

Praise be and hallelujah... hallelujah... hallelujah!

Some days it appears that not much is going your way. But, having rejected the notion that the world is going to end next year, I also wish to avoid diving headlong into the perfidious waters of conspiracy theorem. Besides, I now have a lovely crisp copy of the TCM Executive Summary and interesting reading it makes too. An associate but not someone who is involved in any perceived wider campaign with my good self, has decided to put it online so you too can read it by clicking just here. In closing, I'd like to thank Chris Sheehy for providing us with access to the TCM Executive Summary.

If anyone would like to provide me with a copy of the full TCM Group Report you can email it to me at vagrantsintheworkhouse@gmail.com


NOTES and REFERENCES

    * For the avoidance of doubt it's not really hypothetical case but a real one.
    (1) University of Salford  Disciplinary Procedure, Revision Date, 12 May 2008
    (2)University of Salford Code of Practice for Dealing with Harassment and Bullying (ref: Harassment and BullyingcodeofPractice/29.01.04

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