The sham nature of a disciplinary hearing

It's self-evident that he has the potential to produce satirical writings and annoy those
in positions of power... therefore with reference to the laws of Soderic, his
facial hair can never be permitted to freely associate on our grounds

As readers may be aware, last week saw the first two days of the eagerly awaited Employment Tribunal into this writer's claim for unfair dismissal. Given the body of documentary evidence submitted, it has now been adjourned for a three day hearing beginning 15th August 2011. Two University of Salford witnesses - Mr Philip Hopwood and Mr Simon Attwell - gave evidence and some very interesting issues emerged which will be forensically examined over the coming weeks. Firstly a brief chronology might assist us in our deliberations.

The ology of Chronos

April 29 2009 - GPD elected branch secretary UCU Salford

May 18 2009 - GPD suspended as part-time lecturer

May 23 2009 - First disciplinary investigation

June 10 2009 - Second disciplinary investigation

August 4 2009 - Disciplinary Hearing

August 6 2009 - GPD summarily dismissed

A cursory glance at the timeline might suggest that all is above board. Yet one or two anomalies emerged in the course of Mr Hopwood's testimony that proved... well intriguing to say the least. A little background might serve to enlighten.

All above board

In January 2011, as I've mentioned before, I was in receipt of a large number of documents which were provided under a Subject Access Request (DPA 1998) procured in mid November 2010. One among many caught my attention. It was a simple document that contained two press statements prepared by the University prior to last September's postponed Employment Tribunal. It went under the heading 'Gary Duke tribunal standby statements':

To be used if the case goes in the University's favour:"The University is satisfied with the result of the tribunal and would now like to focus on the future and, as always, to delivering excellent service to our staff, students and partners."

ln the event that the University loses:"The University is disappointed with the result of the tribunal and plans to fully consider the verdict before taking a view on how to proceed."

This is of course good practice. It demonstrates that the UoS and senior managers are even-handed, judicious and prudent doesn't it? Mr Hopwood in giving evidence concurred. For those who remember, my suspension and sacking was quite high profile both locally and nationally for a variety of reasons all of which I'll be delving into over the coming weeks. I have my own views on the legitimacy of my disciplinary hearing. I've always maintained that its outcome was a foregone conclusion. But you'd expect me to say that wouldn't you?

Nevertheless, it's one of the principal reasons for taking this to an employment tribunal. Yet despite my ongoing scepticism, Mr Hopwood assured the Tribunal that proceedings were fair and that no one could know the outcome of the hearing prior to the panel's decision being announced. I breathed a sigh of relief increasingly happy in the knowledge that the decision of the disciplinary panel could only have been arrived at during and after proper process, careful deliberation and proper consideration of all the evidence and any other substantive factors. As if to affirm this perspective, Mr Hopwood stated that they were under "no pressure to come to a decision". According to Mr Hopwood, it took the panel around two hours (2 hours) to ruminate, deliberate and adjudicate. ACAS has a considered view on this:

Adjournment before decision 52: Adjourn before a decision is taken about whether a disciplinary penalty is appropriate. This allows time for reflection and proper consideration. It also allows for any further checking of any matters raised, particularly if there is any dispute over facts.(1)

Despite severe arse-burn, his Petard has been successfully hoisted

Timeline -v- Timescale

Mr Hopwood was also very clear when he stated that there was a "timeline not a timetable"for progressing the hearing and the decision making process. Again all good and proper. However, a piece of documentary evidence was brought to the attention of the Tribunal which cast considerable doubt over the veracity of Mr Hopwood's assurances. The piece of evidence was an email.

Dear Martin...

This origin of this email was a freelance public relations chap known as Edward Rowan. He was brought in by the University to deal with press issues around the time of my suspension and dismissal. It was sent to Vice Chancellor Martin Hall dated 31st July 2009. Under 'Subject' it said 'Email as discussed - OFF THE RECORD' and it went something exactly like this:

Martin

The email exchange below is for information. I've copied it to Adrian and Keith Watkinson.

The current timeline for next week, agreed with Keith, is that the Disciplinary Hearing will be held Tuesday 4 Aug, their decision will be announced face-to-face, in person on Thursday 6 Aug in the afternoon. I will then immediately brief my media contacts off the record. We will then distribute the news release to all media.

I have produced a draft news release (attached) which is now with Keith for his consideration and submission to the University's legal advisor.(2)

I plan to meet with Catherine Cairncross on Monday to finalise arrangements with the University Press Office

Regards Ed.

If you float you're up the road, if you drown we'll renew your contract!

A job thoroughly well done

Ordinarily, this email might not normally draw a second glance. But on closer inspection provocative questions begin to spring forth like militant Siphonaptera in a state-owned flea circus run by the tyrannical Colonel Gadfly. Readers might wish to reflect on the date. Like me, many of you might be asking how Mr Rowan, Vice Chancellor Hall and the Registrar Dr Adrian Graves could know precisely four days before the Disciplinary Hearing what the outcome was going to be? How could they know four days before that the decision would be reached and transmitted to me on the 6th August? And indeed it was. How could they know that I was going to be dismissed?

Oddly Mr Rowan hadn't prepared two statements in case any decision went my way. Why? It's not beyond the realms of fantasy in fair proceedings that one might have received a good telling off, a metaphorical slap on the back of the hands from the Disciplinary Panel with an accompanying final written warning.

It seems that neither Hall nor Graves, the two most senior officers within the University, had asked for Rowan to prepare a second press release. Shouldn't Watkinson as head of HR have flagged this up given his training? Rowan did send it to him after all for his "consideration". Didn't the University's legal advisors who must specialise in Employment Law, suggest to Watkinson and Rowan that they knock together a second press release just to be on the safe side?

I've given the University every opportunity to provide all documentation under two Subject Access Requests including the missing second statement and countless letters to Matthew Stephenson and the University lawyers reminding them of their obligations under the law. Indeed Vice Chancellor Hall wrote to me personally a few days before the ET and assured me that the University had now supplied me with all the documentation I was entitled to under the Data Protection Act. So I now have everything according to Hall! Oh... and before you ask, he didn't send any second press release.

Oh the specificity of it all...

I've read and re-read Mr Rowan's carefully drafted email to Hall... 'I have produced a draft news release...' Yes it's clear. He means there's only one. But as the Tribunal heard there is a very good reason for this and it was a simple but instructive point made by Mr Longley who is representing my good self. The reason why the University prepared two statements for the Employment Tribunal and only one for the Disciplinary Hearing was that they can exert no direct control over the decision of the Employment Tribunal. It is a different matter when it comes to their own disciplinary processes and disciplinary actions.

Below is the draft press release. It seems that Mr Rowan couldn't even get my age right nor the allegations made against me by the University not that I mind having a few years knocked off my age!

NOTES and REFERENCES

(1) Discipline and grievances at work: The Acas guide, sourced at http://www.acas.org.uk/CHttpHandler.ashx?id=981ap=0

(2) DRAFT NEWS RELEASE - STRICTLY CONFIDENTIAL PART-TIME LECTURER DISMISSED 

It is University policy not to comment on disciplinary matters concerning its staff but given these matters have already been reported in the press as a consequence of the actions of others it is incumbent upon us to comment to your enquiry. A part-time lecturer at the University of Salford has been dismissed from his post after admitting that he was the author of several newsletters defaming a number of his colleagues.

He is 38 years old Gary Duke and his dismissal followed a disciplinary hearing at which he acknowledged that he had anonymously published a series of newsletters containing malicious and personally damaging defamatory racist and sexist (not included in the disciplinary & subject to grievance so not sure we should use these words)remarks concerning fellow colleagues.

The disciplinary panel heard that the female lecturer who was the target of Mr Duke's remarks is extremely distressed by his comments.

A spokesperson for the University said "Mr Duke has been dismissed from the University's employment owing to alleagtions that amount to gross misconduct."

-ENDS-