Wednesday, 20 July 2011

The Enduring Appeal of Rock Family Trees and their like

Wasn't Hades the drummer in the death metal cult band Cerberus Head-Fuck?

It's a little known fact I have a deep fondness for flow charts. How often I sat awestruck eagerly consuming the intricate family trees produced by a long time friend Pete Frame in the British rock magazine ZigZag in the 1970s. Pete could with apparent nonchalance draw together the disparate threads of our common music heritage, making sense of the ebb and flow of band formulations and re-formulations, producing from this the essence of the dialectical processes behind the emergence of some of the most innovative bands of our shared popular ethnology. Those diagrams could often appear labyrinthine and anarchic yet at the same time elementary and disciplined. This fascination has never left me. I've recently become rather attracted to the current flow chart that accompanies the University of Salford Student Disciplinary Procedure with its sheer simplicity and functionality. It's very nearly as good as the organisational  chart located on Martin Hall's blog which is of course always an interesting read.

Avoiding the pitfalls

Over the last couple of years, I've been exposed to my fair share of the attentions of lawyers, barristers, investigatory managers, disciplinary panels and such like. It's a necessary concomitant of standing up for things like jobs and education and against other things like cuts, bullies and one or two actualitĂ© economists. This means a necessary investment of much time pouring over a variety of case law, tribunal rules, civil procedure rules, procedures and Codes of Conduct that exist in the ether of matters both civil and disciplinary. In reality this only has any real value if I can pass on some of this knowledge. With the second installment of my Employment Tribunal on the August horizon, I feel it is time I shared one or two examples of what passed for acceptable practice among managers and senior managers at the University of Salford regarding my student disciplining which was eventually abandoned by the University. I do this in the hope that any students who fall foul of the UoS internal disciplinary procedures might avoid some obvious and not-so-obvious pitfalls.

The complete rebuild

Now to suggest that the current UoS Student Disciplinary Procedure has received a slight makeover would be akin to suggesting that Pharaoh Khufu enjoyed a spot of DIY. There's little utility in dwelling here on the particulars of the current Student Disciplinary Procedure as it would take several articles which might induce a widespread and potentially lethal form of soporifism with known side effects. I'm of the personal opinion that this 'tightening up' is due in no small part to inadequacies raised by my own travels through the 2008 student procedure. So my apologies to anyone currently being 'processed' under the new procedure. It's really not my fault guv! I intend therefore to deal with aspects of my own case within the parameters of the 2008 student procedure that I was partially processed through between 2009-2010 (to view the 2008 Code press here)

The Data Protection Act 1998 - a very useful piece of legislation

I raise the issue now because a rather pertinent email string has fallen into my hands courtesy of a Subject Access Review. Under the 2008 procedure, if a student was alleged to have committed misconduct, the manner in which they're disciplined and the penalties that might have been awarded against them depended largely on the severity of the alleged misconduct. I shall deal herein with a procedural nugget known as 'Misconduct Referred to the Deputy Chair of Senate' which deal with allegations of a more serious type of misconduct. According to Deputy Vice Chancellor, Registrar and Secretary and Second-in-Command  Dr Graves, it was this aspect of the procedure that I was being processed under.

Student suspension... not an elixir for chronic wind

The Harloe letter of suspension on 12th June 2009, delivered with a nod to reducing the University's overall carbon footprint - in one of the University limos - after a fashion laid out one or two allegations against me:

'Dear Mr Duke

As a postgraduate research student currently registered with the University, you will be aware that you are subject to the provisions of the University's Student Code of Conduct. I have attached a copy of the Code for your information.

I have been informed that you have now admitted to officers of the University, at a formal investigation meeting under the Staff Disciplinary Procedure, that you were the author and publisher of pamphlets published in early 2009 containing content relating to employees of the University. We regard the content of these pamphlets as
malicious, defamatory, unlawful and an obvious attempt to damage the reputation of the University and those individuals [author's emphasis]. I understand that our view of the gravity of your conduct was made plain to you during that formal investigation meeting and, in particular, that your actions are subject also to the Student Code of Conduct.

I am satisfied that your actions constitute serious misconduct under any or all of clauses
2.1a)1, 2.1a)2 and 2.1b)12 of the Student Code of Conduct and, given your admission of these acts and their extremely serious nature, I am suspending you as a student of the University with immediate effect, pending your student disciplinary hearing or the outcome of any appeal you may make...'(1)

Like the Queen the Gods are above all that nonsense

Clearly Harloe et al had a problem with my writing things which is a little odd given I was employed in a university. But to include such allegations of 'defamation' and 'unlawfulness' was just plain silly, as Professor Harloe wasn't a part-time High Court judge and the University hadn't been transformed by Dr Graves into a Civil or Criminal Court with reclaimed Stuart oak panelling. It's the damaging the reputation of the University which is the issue in hand here. What does it mean? Well pretty much whatever you like as it is of course a singularly general term open to a multitude of interpretations by any assortment of bigwigs and their legal advisers. It is also one of those terms and allegations that quite peculiarly works in one direction only. This can of course be tested empirically:  try writing to the Vice Chancellor providing evidence to show that Deputy Vice Chancellor, Registrar and Secretary and Second-in-Command has deliberately misinformed an Information Commissioner and see what sort of response you get. You'll get my drift.

The student disciplinary process

If the allegation(s) is deemed serious by the University, the student may be suspended. If this is the case, the Deputy Chair of Senate (DCoS) calls for all the evidence and information in order to prove or indeed if it is to be fair, to disprove such allegations. After collecting such evidence the student is required as part of this process to attend an interview with the DCoS. The student can take a representative along. At the conclusion of the meeting the DCoS may ask for a further investigation and further evidence. Alternatively s/he may decide that your 'crime' is so heinous that short of flogging with cat 'o'nine tails steeped in vintage Ebola, that the matter is referred to a Discipline Committee. If the student admits the misconduct, the DCoS may decide upon particular penalties (the same penalties that can be awarded by the Discipline Committee below). 

Monsieur your suspension is of course a neutral act and does not imply guilt
you innately heinous  feck-er... 

The Discipline Committee

The Discipline Committee has the power to award a series of sanctions or penalties against the student including expulsion from the University for a period of ten years. It's likely that at this point many of you are weighing up the pros and cons of a camping trip at a place known colloquially as Ilium under the overall auspices of a King Agamemnon or suchlike. The Discipline Committee might also decide to recommend that credits are not awarded (degree not gained) or/and that an award already made by the university be withdrawn. It's quite serious stuff and can have a colossal impact on a student's future career prospects. There are two things to remember here: firstly according to the 2008 procedure only the Deputy Chair of Senate can undertake the above, secondly, it is the deputy Chair of Senate who after reviewing the evidence alone makes the decision to ask for the matter to be referred to a Discipline Committee. Keep this little gem at the forefront of your minds.

A long train coming

For the uninformed, I was un-suspended on 6th May 2010 in a letter from Graves that stated that all proceedings had been terminated by Martin Hall. I was awarded my PhD but in what is in my opinion a rather petty and vindictive move, I was informed that I would not be allowed to attend my graduation ceremony, would not be given an Alumni Card nor like thousands of other graduates and former alumni be entitled to access to UoS library facilities and archives. In contrast my PhD thesis was entitled to unrestrained access to UoS archives. Now some of you might be asking "Dear Doctor, why if the University dropped proceedings are sanctions being applied against you by the University?" and "why did it take around 11 months to progress and finally terminate the student disciplinary process whereas it took only 11 weeks to suspend, investigate and dismiss you as a member of staff?" Part of the answer lies below.

What did happen...

Around one month after my student suspension on the 17th July 2009, I was informed by another letter from Harloe that the Deputy chair of Senate Professor Martin Bull would be stepping down from this role as he was located within the same School as I which presented the University with somewhat of a potential conflict of interest. A Dean of Faculty (now Pro Vice Chancellor) Professor Cynthia Pine was appointed by Harloe to take his place. All well and good one might think. Well not quite... the problem for the University was that there was no provision within the 2008 Code of Conduct for Student (CoCfS 2008) for the University to make this appointment. This was recognised by the UoS solicitor Lindsay Harris in an email to Mr Mark Rollinson (below).
Yes it does say 'departure from the procedure'. Ms Harris' email was in response to an earlier correspondence from this Rollinson chap to the Deputy Vice Chancellor, Registrar and Secretary and Second-in-Command  Dr Graves.

Who is this chap Rollinson?

Now for the uninitiated, Mark Rollinson according to the UoS website is 'Head of Governance Services and Deputy Secretary'. Mr Rollinson reports to Dr Graves as Governance Services is located squarely within the 'Registrar's Division' which has nothing whatsoever to do with football leagues or a benign yet still active section of a Freikorp catering service. One might expect given his grandiose title that Mr Rollinson would be an authority on matters concerning the processing of students under the 2008 (and subsequent Student Disciplinary Codes). Indeed, such is Mr Rollinson's apparent authority and knowledge on such matters, Vice Chancellor Harloe stated in is suspension letter to me that "...if you have any questions arising from this letter please address them to Mr Mark Rollinson, Deputy Secretary and Head of Governance Services."(2) What was Mr Rollinson's advice to Dr Graves?

Given Mr Rollinson's position would it not seem odd to a reasonable person that he should therefore make the assumption to Dr Graves that he and Dr Graves ie - THE UNIVERSITY - would want to "...stay silent about the Deputy Chair of Senate and the conflict of interest issue?" The inference in Rollinson's letter is that they only raised the 'conflict of interest issue' precisely because I had in my hands a copy of the 2008 Procedure.

One or two questions

It's time for a question or two: is this the sort of behaviour we expect from those in an office of considerable importance particularly when we consider the obvious ramifications such disciplinary action might have on the future academic and career prospects of a postgraduate student? Where is the stern reply email from Graves to Rollinson stating in the most strident language possible without swearing, suggesting that it would be wrong to try and conceal this matter and that he should go on a re-training course immediately? It wasn't with the thousands of other emails sent to me by the University...

Seeking clarification

The upfront explaining that the University's legal adviser Ms Harris spoke of did not stretch to a suggestion in Vice Chancellor Harloe's erudite 17th July letter that Professor Pine's appointment was a 'departure from the procedure under the Code'. I prefer to refer to it by its proper name - an ultra vires appointment and therefore a breach of the Code. Although Harloe was keen to point out to me in his first letter which parts of the Code I'd breached through my alleged misconduct, he chose not to point me in the direction of which precise clause in the 2008 Code allowed him to appoint Pine. Might a reasonable person hold the view that in breaching the Code in such a flagrant manner in making an ultra vires appointment, that Harloe might himself have committed a serious misconduct and through this act could potentially damage the reputation of the University and bring it into disrepute?

Harloe could of course sought clarification as to the extent of his obligations and powers under the Code. It clearly states in section 10, page 11 of the 2008 Code of Conduct that 'Guidance on the Code and on its operation will be provided by...' the 'Governance Services Unit' headed of course by... yes you're damn right... it's indeed the above Mr Rollinson.

In the course of your deliberations you will no doubt have noticed that the pipe-stove 
be-hatted Suffolkian has a recording device secreted in his be-whiskers

Return to the foray

The University, obviously keen to resolve the student issue organised a meeting with Professor Pine a whopping eight (8) months from my suspension on 19th February 2010. Prior to this meeting, that persistent Suffolkian Longley and I garnered for ourselves our own external legal advice with regard to Pine's appointment using the University's own internal legal advice as a point of obvious reference. Our advice concurred. It was ultra vires. We were advised in no uncertain terms not to participate in this meeting . As a matter of courtesy we decided that we would attend simply to state that we could not participate in the meeting and make the legal advice we had been given known to Pine and leave immediately. This we did. The outcome of this brief congregation is itself highly elucidatory and will be aired in the not too distant future. Suffice it to say that one simply cannot overstate the intrinsic value of electronic recording devices.

It's illogical captain...

Despite this, the University sought to proceed with the student disciplinary. The ultra vires nature of Pine's appointment was an issue contested by Deputy Vice Chancellor, Registrar and Secretary and Second-in-Command  Dr Adrian Graves, who wrote in an email to me dated 24th February 2010:

'...In the meantime, the allegation Mr Longley has made that the meeting on 19th February 2010 was “ultra vires”, and that you have repeated in your message of 24th February is without any legal basis and is absolutely refuted. To avoid any actual or perceived bias or partiality that could have been caused by Martin Bull acting under the Code of Conduct for Students, Professor Michael Harloe (the Vice-Chancellor at the time) took the entirely proper and necessary decision to appoint a member of the University’s Senior Leadership Team as a substitute for Martin Bull. You were informed of Professor Pine’s appointment and the reason for it in Professor Harloe’s letter to you dated 17 July 2009. At no point during the 7-month period following that letter did you raise any objection to Professor Pine’s appointment and the first time you did this was at the meeting with her on 19th February. There is no question that the steps taken by Professor Harloe were reasonable, proportionate and did not prejudice you in any way. For this reason it is misconceived to regard Professor Harloe’s necessary decision to depart from the Code of Conduct as having any bearing whatsoever on the validity of the meeting on 19th February or your disciplinary proceedings generally.

I have copied Mr Longley in on this message by way of acknowledgement of his message and for his information.

Yours sincerely,

Adrian Graves'

Putting aside the issue of who actually wrote Harloe's letter of the 17th July 2009 or the extraordinary delay recognised by Graves in his statement noting the "7-month period following the letter",  Graves' logic was quite impeccable; that as I had not raised the issue of Prof Pine's ultra vires appointment at the time of her appointment meant that somehow her appointment was therefore not ultra vires several months later. Not bad for a chap who is according to the Code of Conduct, responsible for administration of the Code of Conduct for Members and Senior Officers and provides guidance over issues surrounding the Charter, Statutes and other legislative matters to the University Council. The University had a stark choice: move ahead without my involvement outside the provisions of their own agreed Student Disciplinary Code procedure and then have the very real possibility of any decision reached challenged in the courts.

Why Codes of Conduct and Disciplinary Procedures exist

According to the UoS current Student Disciplinary Procedure, a Code of Conduct is:

'A set of rules and guidance, approved by the University, which sets out how people engaged in a particular activity must or should behave.'(3)

Ultra vires means 'beyond the power'. Harloe's appointment of Pine was quite clearly 'beyond the power' or rules approved by the University and enshrined in their own 2008 Code. I do have a bit of a problem with the notion of a flexible approach to interpreting a Code or rules. Besides, if Dr Graves was so sure that the 2008 Code of Conduct could safely be interpreted in the way he had, why redraft this provision for the 2010 Code?

If a Code is found wanting, then that is the fault of those who constructed such a Code, not those who are immediately subject to its provisions. Nor can one be subject to unwritten provisions and loose interpretations. This places the subject of any disciplinary procedure at a serious disadvantage. It would be tantamount to operating by a set arbitrary rules.Which brings me nicely to the finale.

A stitch in time...

In March of this year the Employment Tribunal heard evidence of how Vice Chancellor Martin Hall was sent an email by a Mr Edward Rowan on the 31st July 2009 informing him of the day when my dismissal as a staff member would be announced. It included a single press release stating that I had been dismissed and the reasons for my dismissal. It was copied to the extensively cognominated Deputy Vice Chancellor, Registrar and Secretary Graves and Executive Director of HR Keith Watkinson. The odd thing about this was that my Disciplinary Hearing wasn't scheduled until four days later on 4th August 2009.*

Hall: how could he know the outcome of  Dr Duke's disciplinary hearing four days
before the Disciplinary Panel were due to sit? 
(picture of Hall courtesy of US)
Squaring the circle

I stated at the outset that according to the 2008 Code under which the UoS sought to process the student proceedings against me, it was the Deputy Chair of Senate who had the authority to refer the matter to a Discipline Committee either after an interview or after a further disciplinary investigation. I've double-checked the 2008 Code and it's quite clear in section 4.2 (e). After the interview the:

'...Deputy Chair of Senate may, in light of the information then available, decide to act in accordance with any of the preceding options a) to d) or to refer the matter to the Discipline Committee for consideration in which case he/she shall instruct the Registrar and Secretary to convene a meeting of the Committee in accordance with the following provisions of this Code...'

It's definitely his job and no one else's. I've underlined the word 'or'. The word 'or' suggests that the Deputy Chair of Senate has an option or two to choose from. It doesn't state that the Deputy Chair of Senate 'will' refer to the Discipline Committee does it? So I was mildly surprised when I read the email exchange between current Vice Chancellor Martin Hall and Mr Mark Rollinson below.

Au contraire Mr Rollinson. It wasn't in accordance with the 2008 Code of Conduct. Maybe Mr Rollinson could do with a refresher course in Code interpretation as in this authors' opinion, it all seems a bit... well... worked out beforehand doesn't it... Like me I'll bet you're wondering what the Vice Chancellor had to say on this matter?

I think I'll start my letter "Dear Professor Hall... you could at least go through the appearance of adhering to your own officially sanctioned Disciplinary Procedures...."

Notes and References

* See The Sham Nature of a Disciplinary Hearing

(1) Letter from Vice Chancellor Michael Harloe to G Duke, Friday 12th June 2009
(2)As above
(3) University of Salford Student Disciplinary Procedure applies from August 2010 sourced at

If you would like a right of reply or to ask for corrections please press here.

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1 comment:

  1. Aren't Universities supposed to be places of Free Speech...This is a case of peurile blatant bullying..and unbelievable that a student can be threatened in this way after the amount of work and dedication contributed to both the University as a member of staff and as a student!!!