Monday, 31 October 2011

Skeletons and Submissions

It is a truism to state that we Vagrants have received over many weeks, very reasonable enquiries with regard to the lack of judgement from the Employment Tribunal. It is therefore worth reiterating that we still await a decision. We can only speculate as to why it has been so long in materialising. On such an auspicious day, and while we await patiently the Tribunal's ruling, we thought we'd explore one of the University's skeletons; the bones of their arguments presented through the judicious mechanism of barrister during submissions to the Tribunal on the final day of the hearing. Anyone interested in such matters may access their entirety here.  

In order that those so inclined may contrast, it is fitting that we also publish our own arguments and submissions for public scrutiny. Expounded by Citoyenne Longley to the Employment Tribunal as this authors' representative on the final afternoon of the hearing, readers might wish to note that the following record has been prepared by the gallant Suffolkian from his script and notes made on the day.


Tender'd to the venerable Tribunal on the 17th day of our Lord,
in the year Two Thousand and Eleven

Dr Gary Paul Duke 

[the Claimant in the apotheosis of radical dissencioun, being an ardent advocate 
of  unfettered quills]
The University of Salford 

[the Respondent]

'Burchell is a three-part test in that it requires a reasonable belief by an employer held on reasonable grounds after a reasonable investigation.

The respondent does not dispute that an investigation was required and carried out one. The question is whether the investigation was reasonable. Mr Mulholland - the investigating officer, merely established that Mr Duke - the claimant, had authored and distributed the newsletter. The investigating officer did not at any point show or even attempt to show how the newsletters bullied and/or were malicious. The investigating officer relied on the belief - his own personal belief - that the bullying and malicious nature of the newsletters was “self evident”. The investigating officer conceded at the cross-examination that this was his opinion. So what the claimant had to rebut was a belief held by the investigating officer. No evidence of any type whatsoever was submitted to support the allegation of bullying. During the disciplinary hearing the investigating officer had referred to a complaint by Xiang Li. Under cross-examination the investigating officer conceded that he had not seen the complaint, he had not seen it in writing and he could not confirm whether or not the complaint actually referred to the claimant.

The claimant repeatedly asked for copies of the complaint, as his understanding was simply: if there was no complainant then there was no complaint and there could, therefore, be no penalty.

Similarly, the investigating officer and the respondent never contested that the matters raised in the newsletters were matters of public concern. There is evidence that these matters were later investigated by the University, thus underlining the fact that they were matters of public concern.

The specificity of the allegations left much to be desired. The University constantly referred to “posters”, to which the claimant denied any participation. Under cross-examination the investigating officer conceded that the newsletters were clearly headed “newsletters”. Under cross-examination the investigating officer conceded that there was clearly a difference between the bold-type letters of the posters and the close-type narrative lettering of the newsletters.

Mr Attwell - formerly finance director for the respondent, referred to the bullying of Caroline Shaw, the executive officer of Christies Hospital. Attwell contended that the newsletters’ reference to Shaw was bullying in nature. When extracts from a Manchester Evening News blog site were shown to Mr Attwell it was demonstrated that the Manchester Evening News comments were clearly critical in a very sharp way regarding the loss of money by Christies and the Icelandic bank affair. Attwell was unable to say that these comments in the Manchester Evening News amounted to bullying. If they did not amount to bullying then neither did the claimant’s newsletters. Attwell was unable to show how the respondent had been brought into disrepute by the reference to Caroline Shaw. The important point with regard to the investigation was that the claimant was being asked to refute an allegation that Mr Mulholland, the investigating officer, believed the newsletters to be bullying. Unless the respondent can demonstrate how they bullied, the claimant was being asked to refute someone’s beliefs, not evidence or argument. This is unreasonable.

Only a small part of the newsletters, less than 20% was devoted to Xiang Li and John Wilson. You will note the satirical magazine “Private Eye” devotes some 20/30% of its coverage to factual reporting and the rest to satire. Therefore, the allegation that the claimant’s newsletters were, in part, reportage does not detract from their being perceived and accepted as satirical newsletters.

Mr Watkinson, the Head of Human Resources for the respondent, admitted under cross-examination that he had lied in suggesting that the claimant may have been guilty of sexual harassment or stalking. Mr Watkinson denies, at a “without prejudice” meeting that he told the claimant there was no way he was going to get his job back at the University. Mr Watkinson did not report the allegations of sexual harassment or stalking to the police. If Mr Watkinson is prepared to lie about criminal activities in respect of the claimant, fail to report them to the police, as required by the University’s rules, why should the panel believe him with regard to the “without prejudice” meeting. Mr Watkinson is a self-confessed liar and his evidence should be treated with extreme caution.


The disciplinary hearing was a sham. Mr Hopwood, who chaired the disciplinary panel on behalf of the respondent, had been at a meeting with Julie Woosey (HR manager), Philip Hopwood (chairman of the meeting), Tony Warne (second panel member), Paul Jenks (HR manager who assisted investigating manager) and the external lawyers to the University prior to the disciplinary hearing. The purpose of the meeting, Hopwood disclosed, was to discuss how to conduct the disciplinary hearing meeting and the evidence. Mr Mulholland, the investigating officer, said that he could not remember whether he was at the meeting! There is a presumption that he was at the meeting. Mr Mulholland could remember the verbal instructions given to him some months before the disciplinary hearing  with regard to who commissioned him to undertake the investigation, but could not remember whether he was at this crucial meeting beforehand. In the circumstances, it would be prudent to assume that Mr Mulholland was at the meeting in the absence of any evidence to show that he was not. Even if Mr Mulholland was not at the meeting everyone, except the claimant, was present at the meeting to discuss the disciplinary hearing. It was the disciplinary hearing being held “in secret” prior to the formal hearing. This was neither fair nor in accordance with natural justice. In essence the respondent was holding the meeting to make the decision and then re-enacting the decision in front of the claimant. This was a show trial in the worst sense of show trials.

During the disciplinary meeting the evidence shows that the second panel member Professor Warne and, possibly Julie Woosey, were in possession of evidence gleaned from the claimant’s computer. This information was presumably lifted from the claimant’s computer under the authorisation signed by Mr Watkinson when he lied with regard to criminal investigations against the claimant. The evidence gleaned from the claimant’s computer had not been presented by Mr Mulholland in the bundle of information to the Panel, neither was there any discussion to it prior to it being raised by Julie Woosey and Tony Warne. The presumption is that Warne had received information relating to the case prior to the meeting. It must be assumed that this information was made available at the “secret” meeting prior to the actual formal disciplinary meeting. Again, the presentation of evidence in secret to the disciplinary panel only goes to show that the disciplinary meeting was in itself a sham.

The meeting was a sham in other respects:

Julie Woosey an HR manager was listed as a 'moderator', yet there is no provision for such a role in the University's Disciplinary Procedure. It has been shown in the evidence disclosed in the Tribunal that her interventions were more as a prosecutor than somebody providing procedural support or informing the disciplinary panel of its responsibilities.

Philip Hopwood, chairman of the meeting, admitted under cross-examination that throughout the Disciplinary Hearing, the claimant had been subject to interrogation by all four representatives of the respondent, i.e. Hopwood, Warne, Mulholland and Woosey, again this is placed Dr Duke at a severe disadvantage and is contrary to natural justice.

Hopwood admitted, under cross-examination, that he could have conducted the disciplinary meeting better.

Mulholland introduced the issue of “a formal complaint” from Xiang Li. We now know this to be a lie as it does not conform to the Code of Practice requirement issued by the respondent. Neither did Mulholland see the formal complaint. The introduction of this evidence to the panel was not only potentially misleading but was also perjurious.

In essence, Mulholland introduced evidence he had neither investigated nor seen.

For these and other reasons the pre-meeting was a sham and little more than a show trial – the decision having already been reached beforehand in the “secret” meeting with the University’s external lawyers.


The respondent’s witnesses have claimed, both at the disciplinary meeting and at the tribunal, that the claimant could have raised the matters that concerned him through alternative forums. The claimant has eloquently set out why he distrusted the trade unions. Evidence has been shown to the tribunal of the complicity between the University and the trade union and breaches of confidence by both in respect of the claimant’s privacy. That the claimant did not trust the trade union is borne out by the evidence.

Again, evidence has been demonstrated to the tribunal that there is a culture of bullying by the management of the University of Salford and this has been evidenced by the GEM Report, the Gus John report and the recent 2008-2009 Staff Experience Survey. That the claimant did not take his concerns through management is very understandable in the circumstances.

Evidence has been presented to the Tribunal that demonstrates that when Dr Duke did follow the correct formal grievance procedure in making an official complaint against the Vice Chancellor Michael Harloe to the Chair of University Council
Dr Alan Mawson, the Chair of University Council sought to have Dr Duke disciplined! 

Mr Attwell in particular, raised the possibility of taking the matter through the whistle-blowing process. The University have not been able to refute the allegation that the whistle-blowing procedure was defunct at the time of the disciplinary meeting and prior to it. The external party to whom individuals could take their concerns to was no longer in place. Mr Attwell said that the external party role was taken over by KPMG, the auditors. The tribunal has seen in a letter from the University that the auditors to the University only undertake matters of a fiscal nature. The University have not produced any evidence to show that KPMG did indeed fulfil the role of external adviser with regard to the whistle-blowing processes. Again, the claimant’s reluctance to use a process that was uncertain is wholly understandable.

The tribunal was not requested to say what would have been a reasonable response, rather its task is to say whether the response by the University was reasonable. In the absence of a clear complaint of evidence of bullying and disrepute, the University’s response has been unreasonable. Let us be clear, evidence has been made available to the tribunal that shows that Xiang Li did make a complaint and it was to the police in respect of somebody else. Xiang Li was obviously au fait with the complaint processes, but there is no evidence of a complaint of any nature of any sort, in any form, with regard to the claimant. Similarly John Wilson, the other person to whom the respondent claims was bullied, is a Professor of Employment Law at the University and knows full well how to make a complaint should he wish to do so. Again, no complaint of any sort, in any form, in any respect, has been made by Professor Wilson against the claimant. The claimant has no contributory fault, he raised matters of public interest regarding inappropriate employment mechanisms and also regarding such matters as vanity expenditure when redundancies were being made, as well as the fact that the University had slipped in the University League Table from the mid-table to 109 under the leadership of the Vice-Chancellor. These are all matters of public interest and although a public interest defence is not being presented, clearly these are matters of public concern and do not in themselves amount to bullying and maliciousness.

The Code of Practice for Dealing with Bullying and Harassment, which is included in the evidence pack, deals with the bullying of an individual not with an institution. There is no provision for disciplining an individual for bullying the institution in the Code of Practice.

The claimant’s right to free speech is guaranteed, not only by the Human Rights Act, but also by The 1988 Education Reform Act and the University Charter itself. There is a presumption that speech is within the law until demonstrated otherwise. The respondent has not demonstrated at any point that the speech in the form of the newsletters was not within the law. In the circumstances the claimant has not breached any of the disciplinary codes operated by the respondent.

If the respondent is to be believed, this is a case of serious misconduct. Serious misconduct can lead to automatic dismissal. This is an extremely serious matter as a person could lose their livelihood. However, it took the respondent ten weeks from the date they knew with certainty (8 March 2009) that the claimant had authored the newsletters to suspend him (18 May 2009). In effect, if the University's allegations are to be believed, having the information that Dr Duke was the author of the Newsletters on the 8th March 2009, they allowed Dr Duke to go on bullying, harassing and victimising the two alleged victims for over seventy days. By the University’s own admission and through its actions, this cannot be seen as serious misconduct.

The respondent has not presented evidence of bullying or maliciousness but has instead relied on the allegations becoming the evidence and on lies, half-truths and innuendo. The reason the University of Salford dismissed the claimant has more to do with its embarrassment in being held to public account in a manner that ridiculed them through satire. In the circumstances, the only reasonable judgement the tribunal can come to is to dismiss the Respondent’s case.

Enhanced by Zemanta

Thursday, 6 October 2011

A Consultant Calls

Some might say it's money well spent. Others may disagree. The Vagrants do of course refer to the 'summary detail of the annual accounts for 2007-8' released by the University of Salford after some delay - the original request for this information was submitted on the 28th November 2009. The requester Mr Damien Shannon should be commended for his staying power and tenacity. Given the explosive nature of many of these 'operating expenses', it is clear why the University fought tooth and nail to prevent their release. It also begs the question regarding the concept of openness and transparency within what is after all a public authority, funded from the taxpayers purse and increasingly the student wallet.

Of particular interest - CONSULTANCY F££S

We decided to focus on one particular feature of these accounts, a service that has obvious benefits for staff and students alike - we refer to University expenditure on consultancy fees. We make this comment as the University appear to have deemed these particular services worthy of some considerable investment during this period. A comprehensive list of this expenditure has been compiled from the accounts which readers can view here. A quick glance at our dog-eared ready reckoner suggests the figure is lurking in the region known in the numbers trade as £3,961,109 or very nearly £4 million. Dr Graves would have to recruit around  about 480.1 students to cover these costs.

With scientific calculator in hand, we did a rough calculation and surmised from our reckonings that the University invested an average of roughly £76,175 or 9.23 students every week on these ardent-value-for-money-transmitters during the accounting period 2007-08. We continued to break this down and it worked out that the University spent in the region of £10,852 or 1.31 of a student every day of the year including the weekends, Easter and Christmas holidays, Eid and the summer recess.*

An idea of how extensively value was imparted into the overall student experience in 2007-08

Project Headroom and its adherents...

Deputy Dawg: should he consult Muskie
or Vince and if so at what cost?
What is of significance is the year these phenomenal sums were spent. It's difficult to ascertain if the precise extent of this expenditure on consultants under the dual steerage of former Vice Chancellor Harloe and extant Deputy Vice Chancellor Adrian Graves, was brought to the attention of the campus unions during the negotiations around the rather ridiculously appellated 'Project Headroom' in 2008? After all, one of the principal arguments for axing 150 jobs was the claim that it was absolutely necessary to create 'financial headroom' - or what are colloquially known as 'savings' - in order to provide funding for what were seen by Graves, Harloe and the shrewdly named 'Strategic Leadership Team' as essential future investments. Given that the summary detail of the accounts 2008-09 haven't been released to staff or the unions (will it take another FOI for this information to be divulged?), it's not known if the figures for consultancies decreased, remained the same or increased in 2008-09 or 2009-10. If Dr Graves wishes to clear this matter up he can by emailing this information to the Vagrants here.

Why the need for job cuts? Why not cut the consultants?

What is certain is that questions need asking of Martin Hall and Graves about these massive sums spent on consultants. Questions such as 'are they necessary?' or 'what value do they bring to staff and more importantly to students?' Some might also wish to ask 'have hundreds our valued colleagues forfeited their jobs to fund costly firms of consultants?'

More overspends?

The recent 'overspend' of £2.5 million on the new IT systems at the University of Salford voted through by University Council coupled with allegations circulating within the University that the library closures transformation of library services has risen from an estimated £1 million to £4.5 million, might give those threatened with redundancy and redeployment some food for thought. It raises what are in our opinion fundamental questions like - WHO IS ULTIMATELY RESPONSIBLE FOR ALLOWING THIS HUGE WASTE OF MONEY TO CONTINUE? We've just thought of another question that's equally as pertinent given such profligacy with the public purse - SHOULDN'T THE PERSON WHO HAS OVERSEEN THIS SORRY STATE OF AFFAIRS BE SACKED FOR GROSS INCOMPETENCE?

Pest Control

Jack Black
On to more mundane spending matters. We note from the above accounts that the Office of the Vice Chancellor and Registrar spent £87.88 on pest control. 'Pest control' is not we think an arcane reference to the legal fees spent on the libel case against Dr Gary Duke originator of the Rat Catchers of the Sewers blog as one person suggested. After all the Rat Catchers of the Sewers only began posting in 2009. Given the breakdown of legal costs to the University so far, we're of the opinion that the University would never consider spending such a lowly figure on this type of 'pest control' when they could spend in the region of £40,000, which approximates the figure expended so far in the civil courts by Professor Martin Hall and Dr Adrian Graves. What is clear is that this libel claim will prove costly to them in more than financial terms.

Other costs - taxis and coaches

What do they mean by the word 'coach'?
It also remains to be seen whether the £20,392 spent on taxis and coaches by the Academic Registrars Department, the £1,463.2 spent on the same by the Offices of the Vice Chancellor and Registrar or the £73,346 spent by Estates on such essential modes of transport will prove to be value for money. The phenomenal total of £219,823 spent on the above would suggest a lot of coaches have been necessary on a day-to-day basis at Salford. This is not to suggest that some expenditure is not necessary on taxis. The question is, given that it's such a huge sum, can it be proved that the bulk of this expenditure was necessary?

An argument to be put

There's clearly an argument to be put here by Chris Sheehy and the Salford UCU who are resisting job cuts at the moment. It goes something along the lines of 'Dear Martin... can you provide us with complete assurances and detailed evidence to show that all such unnecessary expenditure has ceased in the years 2008-09/2009-10 before we consider discussing a single job loss with the University.'

Notes and References

The Vagrants would like to hear from staff and students with their own experiences of such matters. Any information received will be treated in the strictest confidence. To contact us press here.

*This is at a student exchange rate today of around 1 student =£8250. Due to political expediency, the value of students may fluctuate.

Usual disclaimer: This work is the opinion of the author and is produced in order to report current events that are of public interest and public concern. The reproduction and use of any documents herein is to provide accuracy in order to avoid civil litigation and claims of misquoting. In reporting current events they are used within the context of Fair Dealing. The author is happy to provide further acknowledgement if requested. To make any such request press here.

The author also suggests that before embarking upon expensive civil actions for libel, contact the author. We have reams of documentary evidence which we are happy to provide. A right of reply also operates. We are also happy to make corrections. So, to save £££sss please avail yourself of this opportunity if you feel it necessary, which you can do by clicking here.