The Lido Shuffle revisited

It was with some unbounded glee that I read THE article in Wednesday's Manchester Evening News. And it got me to a thinking, which regular readers of this blog will know is nearly always a bad thing. First thing first. Some might be surprised to learn that Hall and 'Five Lane' Graves have decided to seek permission to appeal the decision of the Honourable Mr Justice Eady in the Court of Appeal. Mr Justice Eady is probably the most distinguished and eminent senior libel judge in England. I have submitted my rebuttal.

Reputational damage?

The libel claim launched by the dynamic duo was premised upon protecting the reputation of the University which Hall and Graves alleged I had damaged through my online scribblings. Mr Justice Eady was quite clear and agreed with me that the libel claim as laid out by Ian Austin acting for the University, demonstrated no tort against the University. Readers may recall that Mr Austin sat on the University governing body and chaired their Audit Committee at the launching of the proceedings in the High Court. From the perspective of the University, this was a real shame because quite a considerable sum of University money was spent on legal fees for a case that was thrown out be a senior High Court judge AT A PRELIMINARY STAGE! Who, I wondered, would be footing the bill for this appeal: Hall and 'Five Lane'? Or would it be the University? Maybe the Salford UCU President Chris Sheehy would like to follow this one up with Vice Chancellor Hall in light of the recent attacks on staff redundancy payments and pay protection rights?

Information is a wonderful thing

On to the meatus of the matter. As luck would have it, they've just released information showing the costs so far of their High Court reputation protecting spendings. They currently stand at around £150,000 including VAT. Yes £150,000 spent to be cast out of the courts AT A PRELIMINARY STAGE! It appears that the vast bulk of this money was paid to legal firms for whom Mr Austin was working. Indeed a rather sizeable sum was paid to Heatons LLP. Mr Austin is currently a partner for this firm. Readers might also note that as evidenced by Heatons' website, at the date of publication of this article Mr Austin is still advertised as being the Chair of the Audit Committee at Salford and on the University governing body. According to the University's website,  he isn't.

Who worked for Halliwells LLP, HBJ Gately Wareing
(Manchester) LLP and Heatons LLP? Answers
on a postcard please

What price the reputation now?

I posed a question to myself. And I liked the answer. I re-read the report in the paper. It's alleged that a similar incident happened prior to this most recent altercation. It was serious enough for the police to be involved. I then mulled over what is alleged to have occurred between Graves and A.N.Other in the vicinity of the University swimming pool, adjacent to the water within the deep and heady miasma of the chlorine. I then drew a link between the spending of somewhere in the region of £150,000 and the recent removal of Graves from University grounds and the concomitant investigation against this less-than-lacklustre-libel-launcher. I then  factored in the most recent 'a seeking of permission to appeal the decision of Eady J' to the Court of Appeal by Hall and Graves in order to continue to protect the reputation of the University. Finally, I cross-referenced all of this against the report in the Manchester Evening News. This I managed to achieve with simple tools: an old buff-ended Crayola crayon covered in deep settee fluff, my eyes and a wizened Rizla. I fed this raw data into the REPUTOMETER. What sort of results would manifest themselves I wondered? I was worried. I didn't hang around to find out.

Maybe I should start my letter to Professor Hall 'what price the University's reputation now?'

Notes and Resources 

Usual disclaimer: This work is and expression of opinion on a matter of public interest and contains the opinions of the author. It is intended to report current events that are of public interest and public concern. The reproduction and use of any documents, photos and video images herein is to provide humour and accuracy in order to avoid civil litigation and claims of misquoting. In reporting current events they are used within the context of Fair Dealing or Fair Use. The author is happy to provide further acknowledgement if requested (email below). 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 and if necessary provide an apology. Email garypaulduke@gmail.com

This public authority walks into a bar...

“You were not there for the beginning. You will not be there for the end.
Your knowledge of what is going on can
only be superficial and relative”

William S. Burroughs, Naked Lunch

It was an interesting hearing. And my reservations about the outcome proved rather sagacious. A chap's application to have the University's claim for libel struck out was rejected by the Court. The application was based on three points of contention:

• That the statement of case, specifically the particulars of claim provided by the Claimant to the Defendant Dr Duke, discloses no reasonable grounds for bringing the claim, and is an abuse of process,
• The Claimant's claim has no reasonable prospect of success,
• The Claimant’s claim is an abuse of the Court’s process and that the Claimant is using that process for a purpose in a way significantly different from its ordinary and proper use.

I also raised the matter of whether a public authority could sue for defamation, which provided the basis for and resulted in an interesting, if not bizarre, piece of courtroom logic.

The Billy Bones of contention

It was my contention that the University's Particulars of Claim (P of C) disclosed no reasonable grounds for bringing the claim. I stated to the Court that the claim might have the University's name on it but the Particulars of Claim indicated that it was Blogger Hall and and his subordinate Graves who were actually bringing the claim and using the University as a front to bring this libel action. I suggested that they were using the University's name in order to indemnify themselves against costs and any negative publicity if their libel claim failed. I also argued that the Particulars of Claim disclosed no (alleged) reputational damage to the University, and that the Particulars had been framed in such a way as to purposefully conflate the reputation of the Graves and Blogger Hall with that of the University. It seemed rather obvious to even the most reasonable type with a keen eye for detail, that the reputation of a Hall or a Graves was a distinct and separate entity from the reputation of a University. Given past hearings, I thought it might be wise to provide a couple of examples to the Court underscore my arguments.

Alain Sucre... "you're sued!"

Distinct entities - not a Trekkie convention in Colorado

When Alan Sugar sued the Daily Mail for an article that branded him 'miserly' as Chairman of Tottenham Hotspur FC, it was Sugar who did the suing to defend his reputation, not Spurs to defend theirs. Similarly, it was Richard Branson who sued US lottery firm G-Tech in order to defend his reputation when he was accused of being a 'liar' and not Virgin Atlantic Airways to defend their corporate reputation. It demonstrated that an alleged libel against the head of a large commercial institution - the public face of that institution - did not amount to a defamation of the organisation and damage to the reputation of the organisation. It seems a bit obvious even to the most denigrated chump.

You can't take it with you... or can you?

I raised the matter of the 2005 Gus John Report which highlighted a culture of bullying among managers at the University of Salford, and the later 2008-09 GEM Report that showed that the University had failed to address many of the issues raised in Professor John's report. That the former Vice Chancellor Michael Harloe had allowed this critical report to be published online, did this therefore mean that Harloe had damaged the reputation of the University? Not one for not labouring a point, I also asked that if the reputation of this institution and the reputation of a Martin Hall are one and the same, when Hall decides to leave the University, would he be taking the University's reputation with him? It's clearly a silly proposition isn't it?

When he goes, can he take it with him?

A distinct lack of accord

The University's barrister didn't agree for obvious reasons. And nor did the Judge, who to be fair is a District Judge. Eschewing tradition and the widely accepted principle of informing a decision by citing something known in the trade as a 'legal authority', our latter day Solomon ruled that there was a 'nexus' between the reputation of a senior manager and the reputation of the University: that to publish a comment that is arguably defamatory of two senior employees of a University (in their professional role) and of the University's Executive Committee, amounts to publishing comments that are arguably defamatory of the institution that employs them.

There's a sort of perverse yet logical antipodal to this. Is it therefore the case that if one defames an Institution, one automatically defames a senior manager or a cluck of senior managers and yes... you've got it... the entire payroll staff of the Institution. I mean if anyone is the public face of a university it's the lecturers. It is they after all who are confronted by many thousands of students on a daily basis. It's Ying and it's Yang.

Is it illogical Captain?

Yes, you may be conjuring up a similar string theory dichotomy as we collectively perceive an horribly corrupted Vulcan mind-melder with weeping piles. He's mid-flow, and he's not smiling. And he's worked his finger-magic on some poor fuckwit in a business school in some far off distant galaxy. Despite his vinegary temperament he's pleased because he's finally managed to convince our dupe that a new rectal evacuator situated adjacent to the new absolutely necessary holo-meeting room is actually the embodiment of a depilated huntus majoris.

Graves - despite being Salford's FOI 
Champion, he doesn't work for
a public authority

When is a public authority not a public authority?

We also argued that the University was perceived by those in legal circles as something akin to a Publicus Authoritus.* Oddly enough, public universities are also widely perceived by Parliament as public authorities. Even the Information Commissioner thinks they are. I also thought it germane to state in court that Hall and Graves, as employees of a public authority, were therefore public officials and as public officials, should be open to public scrutiny. Indeed I emphasised the point that as public officials employed by a public authority, they should be encouraging more public scrutiny, not less. It seemed entirely bizarre then that the barrister employed by the University would argue that it wasn't a public authority because unlike a local council, it wasn't elected. I'm not sure if he'd bothered to consult the University's own website which states:

'As a public authority, the University of Salford is obliged to meet the requirements of the Freedom of Information Act.'(1)

What the frig does locus standi mean?

But attention to this sort of detail is something that's been conspicuous by it non-inclusion in this whole affair from day one. Far be it for me to argue with the University over how it describes itself publicly and conforms to the law. And I would never be so bold as to argue with a set of law-makers known colloquially as 'Parliament' over such matters of import. But surely, if the law recognises a public university as a 'public authority' then there must be something in it? It was worth persisting with I thought, and to prove the point - that as a Publicus Authoritus the University of Salford has no locus standi to sue for defamation - I brought along one or two legal authorities. I handed them to the District Judge. The first is extremely well known: Derbyshire County Council v Times Newspapers Ltd and Others [1993] AC 534 and the second McLaughlin and others -v- London Borough of Lambeth and Khan [2010] EWHC 2726 (QB). Both cases are explained in more digestible terms here.

Barristers - no flies on them...

To bolster the argument that it wasn't a public authority, the University's barrister argued that the University was more akin to a commercial enterprise, increasingly dependent for its income on student fees rather than government funding or HEFCE grants. It was this that largely determined its status and proved therefore that it was not a public authority. In this schematic it would appear that the legal status of an public authority is fluid and not determined by law but by a set of variable economic factors. One wonders where this leaves our dear old local authorities (councils) who operate increasingly in the commercial arena. Does it mean that they are no longer public authorities and can sue in defamation? Council tax payers and citizens beware!

... no flies on Judges either

As luck would have it, the District Judge, without reference to any legal authority (including the two I'd handed to him), decided that a lower court can overrule a higher court or two and ruled that the University wasn't a public authority and therefore could sue for defamation. I wondered if for a moment he considered the public authority status of the UK courts system who also aren't elected?

Dow Jones -v- Jameel [2005]

I also argued that the libel claim was, on the Particulars as they stood, unsustainable and that the costs of the action would far outweigh any damages the Claimant might hope to receive. This is often referred to as a 'Jameel abuse' and goes to proportionality. The precedent in this was Dow Jones and Co Inc v Yousef Abdul Latif Jameel [2005] EWCA Civ 75 para 69. The District Judge rejected this argument for the reason that the claimant (the University) was also seeking injunctive relief (an injunction which the University barrister admitted was the principal reason for taking action, to close down the Rat Catchers blog and to close down Vagrant in the Casual Ward of a Workhouse), and that therefore, the injunction sought could not be separated from the claim and that 'Jameel' could not impinge upon this aspect of the claim. He decided that on this ground, the claim should stand.

Fly type -"Can you re-particularise these for me please and then re-particularise my head?"
Lady - "Sod off"

A lack of precision... 

I was also keen to raise the matter of the specific content of the University's Particulars of Claim. I cited a passage from Gatley on Libel and Slander 9th edition, which states:

'In a libel the words used are the material facts and must therefore be set out verbatim in the statement of claim, preferably in the form of a quotation: it is not enough to describe their substance, purport or effect. The law requires the very words of the libel to be set out in the declaration in order that the court may judge whether they constitute a ground of action. "A plaintiff is not entitled to bring a libel action on a letter which he has never seen and of whose contents he is unaware. He must in his pleading set out the words with reasonable certainty... The court will require him to give particulars so as to ensure that he has a proper case to put before the court and is not merely fishing for one."'

The problem I have with the University's POC is that whoever compiled them has utilised a technique that  a certain Mr W S Burroughs might recognise - I referred to it as a 'cut and paste' approach. What do I mean? It is quite clear that in some sections of the words relied upon to claim a libel has taken place (allegedly of course), that in some places the beginning of one sentence has been pasted to the final part of another sentence. As any academic worth his sod-chlod would know, this sort of practice decontextualises the words. More importantly, it may also drastically alter their meaning. And call me a little picky, but I don't happen to believe its anywhere near good enough. And unlike the Judge who thought I should be applying for further information through Part 18 of the Civil Procedure Rules, I thought it apposite to state that it is not my role in libel proceedings to build the Claimant's case for them. That's the job of Mr Ian Austin and their barrister.

... and a lack of words

I thought it worth drawing the Judge's attention to one particularly deficient section of the Particulars. Here the words alleged to be defamatory hadn't even been included within the Particulars of Claim. Call me a stickler for detail but I thought including the words alleged to be defamatory was central to the bringing of a claim. Barrister Vaughan directed both the Judge and myself to something called the 'Annexe to the Particulars of Claim' which consists of several pages culled from large sections of the Rat Catchers blog. The section he directed us to for those with good memories was entitled 'It's All in the Game'. If I remember correctly there are 3830 words in this particular little gem. It was rather verbose. Among these 3830 words, which did they claim were defamatory? As they hadn't included the words in the POC, I didn't know and nor did the Judge. I thought it worth mentioning to the Judge that as Mr Vaughan had to refer to his annexe, that this in itself was indicative that the Particulars were far from useful to a chap called me in building a decent defence. I asked that even if the Court decided to dismiss my application, that the Judge at least order the University to re-particularise their Particulars of Claim. It seemed a reasonable request. He didn't.

"Human rights.... they are I believe largely overrated"

An attack on a chap's Convention rights

The Judge did seem to perk up when I made reference to something called my 'Convention Rights'. Now Convention Rights for those who couldn't give a shite, are often referred to in disparaging terms in the haemorrhoid press. They'd have us believe we have too many of them and that there's nothing wrong with women bearing their breasts whilst pulling half a ton of coal up from the bowels of the earth. Or that chaps with beards, of Muslim religious persuasion, who might have an accompanying faint whiff of radicalism, should be sent back to prison for not being guilty of anything. It's what made Britain 'GREAT' you see. But the idea of a public authority interfering with a chap's right to freely express himself is quite frowned upon in the European Court of Human Rights located somewhere in Strasbourg which you're all perfectly entitled to read about here:

'Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...'(2)

Back home...

The Royal Courts of Justice

So now, because a public authority has trampled on my right to impart information and ideas, and my right to freely express my opinion, the Judge has decided that the whole shebang must now be heard, not in the  comfort zone of the Manchester District Registry, but somewhere a little further South, often referred to within the civil beakery as the Royal Courts of Justice in Londinivm. Yes this is going to be a full-on libel trial and will be heard by some of the most experienced Judges in this field. Putting aside for a moment the fact that I raised many serious matters which in my opinion have far-reaching implications for our human rights and civil liberties - particularly the right to freedom of expression - I feel my application was dismissed rather perfunctorily. The Judge also awarded swingeing costs of £2,800 against me (which I don't have). Nevertheless, the move to London is a definite 'result'.

An appeal is lodged

So this week my application for permission to appeal the District Judge's decision was sent off to the Court of Appeal in London. And given my impecunious state, it's entirely logical that as I don't believe the Judge's decision was correct in law simply because it wasn't based on any legal authority, I don't believe that the costs he awarded against me are just either. So I've asked that these costs be set aside.

I am looking forward to the first round of preliminary hearings in't' smoke' sometime soon. You are of course all welcome to attend.



Notes and References

* Made up and therefore not really Latin but not entirely disimilar in its written form to a 'pubic authority' a person in a white coat who might well study in some depth all manner of issues centring on pubicus hairicus.
(1) University of Salford website entitled 'Information Governance 'Introduction and Basics' sourced at  http://www.infogov.salford.ac.uk/freedom/intro/
(2) Article 10, Human Rights Act [1998] which is framed more widely within the European Convention on Human Rights sourced at http://www.hri.org/docs/ECHR50.html


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, photos and video images 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 or Fair Use. 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 and if necessary provide an apology. So, to save £££sss please avail yourself of this opportunity if you really feel it necessary, which you can do by clicking here.

Sisyphus Shitae and the labours of hyperbole

I was bored. I could only liken surfing the internet that evening to an extended sojourn in the Intertropical Convergence Zone immediately after the upper reaches of the trophosphere had been sown with a selection of aerosolized benzodiazepines by a belligerent eco-pharmacologist with a penchant for languidity. However, providence always the saviour, brought me via a rather tortuous route to Martin Hall's blog which in my opinion can always be relied upon to spice up a doldrumic evening. Oddly enough, on this occasion it didn't.  I was captivated by a collection of words that had been arranged into a series of paragraphs of meaningful discourse on 'cyber-harassment' that always proved a worthwhile read. It was entitled the 'Dark Side of the Internet' posted a year ago which was rather apposite.

The world according to Darth

Quoting author Paul Bocij's (1) work on cyber-harassment, Hall wrote:

'One such set of abuses is the growing prevalence of cyber-harassment. A widely used definition of cyber-harassment is: “a group of behaviours in which an individual, group of individuals or organisation, uses information and communications technology to harass one or more individuals. Such behaviours may include, but are not limited to, the transmission of threats and false accusations, identity theft, data theft, damage to data or equipment, computer monitoring, the solicitation of minors for sexual purposes and confrontation. Harassment is defined as a course of action that a reasonable person, in possession of the same information, would think causes another reasonable person to suffer emotional distress.”

The key words here are 'group of individuals', 'organisation', 'information', and 'communications technology'. Professor Hall then went on to state what such 'bullying' and 'harassment' means at the University of Salford-Manchester:

'As a university, we have our own share of cyber-bullies and harassers. They are invariably disaffected individuals with personal grievances who hide behind anonymous blogs and e-mail pseudonyms. They are often neither students or staff. They make unverifiable claims for mass support (sometimes aided by dodgy journalism) and exaggerated claims to be speaking truth to power, or revealing corruption in the public interest. They misuse rights of access to information through serial claims under false identities. Their postings are peppered with defamatory attacks on individuals which may be xenophobic , sexual or just downright nasty. Because these postings are always anonymous, those defamed have no easy recourse. And because of the nature of the Internet, these toxic shards hang around for ever, popping up along with the victim’s name as a virtual doppelganger.'(2)

For starters, I concur with Hall that the University of Salford-Manchester has its 'own share of cyber-bullies and harassers'. I shall elucidate.*

Revisiting older ground

Does this constitute a beard 
or an act of potential 
American Civil War?

This area has been covered before by Vagrants in some detail. So why revisit it now? Using language that a Clarkson would be proud of, I thought it might be worth a quick pit-stop in light of the recent findings by the Employment Tribunal. Thus, in December 2011 I once again donned the austere robes of quilliary and put ink to paper. It was a nice polite letter** (see below) and winged its way courtesy of a chap called Hermes to the inbox of the current Vice Chancellor.

Now this letter was a solicitation. Well a series of solicitations really. But the main thrust was my wish to instigate formal complaints against former Vice Chancellor Harloe, Adrian Graves and my former Head of School Professor Paul Rowlett. Among other things, I also asked for something often referred to by some in the atonement trade as 'an apology'. And increasingly I'm of the opinion that receiving one is going to be about as challenging as extracting a huge oral throbber with a pair of wet rubber pliers. But before we venture into the realms of the entirely possible, and to contextualise this piece, it might be worth just reassessing the Employment Tribunal's findings at section 37 of the Judgement. It's worth mentioning here that both parties were sent this judgement on the 16th November 2011.

Views from an Employment Tribunal

It focuses specifically on emails authored by senior staff and my own Head of School(3) and another authorised by the former Vice Chancellor Michael Harloe. These emails were distributed 'throughout the university community' and to students I taught. Press releases produced by the University, using the same words and implying similar racist motivations written in the same 'extreme way',  were sent to local, and national press:

The view of the Tribunal...

The essential input of Dr Adrian Graves

Forswearing a 'hands-off' approach, the Deputy Vice Chancellor Adrian Graves took a particular interest in one email, or to use his words 'briefing', to my own students suggesting to managers that they include a such non-prejudicial gem as  'I was tempted to suggest as part of your briefing you might slip in the fact that the allegations include the harassment of a female student of Chinese ethnic origin...' (4). Included in this select group is Executive Director of Human Resources - one Keith Watkinson who was not a press officer as far as I know, but who added something called barbs to press releases concerning my suspension. The Tribunal gave us a unique opportunity in exploring the professional activities of Mr Watkinson which readers new to Vagrants might wish to prospect. Yet the question remains; if the Tribunal found these emails to be 'inappropriate' and 'unfair' then surely this is a very serious matter? Any reasonable person would surely conclude that in light of such comments from the Tribunal concerning the behaviour of senior executives and Keith Watkinson with his 'barbs', would at the very least warrant an unreserved apology from Hall and Graves and an investigation?

A comparative analysis regarding the concept of 'bullying'

There is an important point to all this. ACAS suggest a definition of bullying which the University relied upon in the Tribunal to make their case:

'There are many definitions of bullying and harassment. Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient...'(5)

There is another key word here, the word 'may'. And I'm certainly open to debate on the issue of what constitutes bullying and what constitutes valid commentary particularly around serious issues that centre on matters of corporate governance and particularly the manipulation of appointment processes in a publicly funded authority.

However, if, as the University maintain, the authorship and distribution of the Vice Consul's Newsletters were a form of bullying, harassment, victimisation and brought this particular institution into disrepute (which I dispute which is why I've launched an appeal against the decision of the Tribunal), then what do we make of the authorship and widespread dissemination to staff and students by senior managers, of 'inappropriate' emails and 'barbed' press releases written in an 'extreme way', emails which according to the Tribunal, unfairly implied that I was being racist in my reference to a member of staff? I certainly felt undermined, humiliated, that I'd been denigrated and injured.

Taking the official complaints route - a fools errand?

Oddly enough, the question of these 'inappropriate' and unfair emails came up in two complaints I made in 2009 against former VC Michael Harloe.

It would appear that the investigator Chris Wells (Deputy Chair of University Council), also 'failed to see how this could amount to harassment or bullying' and found against me as I'd anticipated. Yet these finding sit uncomfortably next to the above comments made by the Employment Tribunal.

There's potential aplenty for the besmirching of a reputation

Duke - Is he a potential 
Victorian or does his public 
stance constitute a potential 
act of double-parking?

And what in the Fields of Elysian is an act of 'potential sexual harassment'? It's a nonsensical notion but the words 'sexual' and 'harassment' when placed within the context of a press release certainly jump off the page. But the concept of 'potential sexual harassment' certainly got the creative juices flowing and the potential for over-elaboration was astonishing. Does driving one's car constitute an act of potential murder, or the doffing of one's Trilby to a person of the opposite sex an act of potential rape? Does the wearing of checked shirts constitute an act of potential lumber-jacking? What of the growth of hair-based facial embellishments. Are they little more than a heinous act of potential Victorian imperialism? Capillus Emptor!

...but words not so aplenty

Of course we don't know what the 'female student' said or precisely how concerned she was that this constituted an an act of 'potential sexual harassment' because with regard to my own specific case, she was never interviewed concerning any matters regarding the Vice Consul's Newsletters or the allegations made against me. Nor did she make any official complaint against me. Given the lack of any evidence of 'sexual harassment' potential or otherwise, one can only conclude that they were simply making this little 'fragment toxique' up.

'Toxic shards' and other downright nasties

Which brings me back to Hall's view on the use of electronic and communications technologies to spread 'toxic shards' that are 'downright nasty'. I'm of the opinion that the damage to my professional reputation because of the distribution of these emails and press releases is ongoing. And these particular 'downright nasty' 'toxic shards' are still hanging around in the words of Professor Hall, 'like a virtual doppleganger' for the world to see.

Of course I realise that the Vice Chancellor Hall was not steering the good ship University of Salford-Manchester at the time of the above. He is in charge now. And clearly it was his immediate subordinate Graves who was ultimately responsible for authorising those press releases sent to local, regional and national press publications, that used the same terms and were thus as  'inappropriate' as the emails sent to the wider 'university community' as noted by the Tribunal in its judgement.

Do the University procure the professional services of a Stygian chap
and if so, would it be in the annual accounts under 'consultancy fees?

Response #1

For starters, and rather predictably, what I did get six days after sending my letter, was a copy of a letter from their lawyers sent to the Employment Tribunal. This letter stated that the University would be asking the Tribunal to make an award against me for full costs. The letter was a compelling read. They were duty bound to take such a course of action as 'a custodian of the public funds'. It goes without saying that I'm vigorously opposing their claim. Readers may draw their own conclusions as to the timing of this letter and the motives of the University.

Response #2 from the 'custodian of public funds'

However, just when I'd given up all hope, last week a letter dropped through my door. Clearly considering 'its obligations under the Charities Act 2006' as well as its 'common law duties under charity law generally' this 'custodian of public funds' decided to respond to my calls for an internal investigation, and my wish to avail myself of the the internal complaints process by asking their external lawyers - Eversheds - to write to me. It's a cracking way of saving money in these times of frugalité. I'd have been quite happy with a short personal response from Hall. Nevertheless, despite its succinctness it is rather amusing. Yes folks... it would appear that they've already dealt with this matter in their letter to me of June 21st 2011, a clear 148 days before the Tribunal released their decision! I'm impressed! I had Professor Hall down for many things, but a sayer-of-sooths wasn't one of them.

The sound of silence

The letter also states that they will not engage in any further correspondence with me with regard to these issues. It's gratifying to know that there are internal mechanisms in place at Salford-Manchester for dealing with complaints against senior members of staff when they have clearly acted in a manner that the Employment Tribunal have deemed to be 'inappropriate', 'unfair', and in a manner which I consider to be bullying and harassing. And all this while I was an employee of the University.

So what does a chap do when his good name and reputation is besmirched among colleagues and students via email, where it is implied that he is racist, and such false allegations distributed to the local and national press and published? Unlike Professor Hall and Dr Graves, I shall not be asking the University to fund a civil claim for defamation in the High Court.

I shall just continue writing this blog instead.


Notes, References and Links

(1) Paul Bocij, “The Dark Side of the Internet: Projecting Yourself and Your Family from Online Criminals,” 2006.
(2)The words of Martin Hall can be accessed at http://www.corporate.salford.ac.uk/leadership-management/martin-hall/blog/2011/01/dark-side-of-the-internet/
(3) The email in question: "Dear IFY student. You may be aware that Mr Gary Duke has been suspended from his post at the University. A number of you have in fact signed a petition in support of Gary, which I have forwarded to relevant senior managers within the University. The situation is that there has recently been a series of posters appearing in the Salford Business School, but also elsewhere across the campus, that viciously attack a female student of an ethnic minority and a head of school. The content of these posters is sexist, deeply offensive and defamatory. Mr Duke has been suspended owing to allegations that he is responsible for the production and dissemination of these posters. I am sure that you will appreciate that it would be inappropriate for me to comment on the details of Gary's suspension; however, I can assure you that the University is dealing with the situation in an appopriate way through legal processes to ensure that Gary's rights are protected appropriately..." sent via University email system to IFY students 22nd May 2009

(4) Portion of an email from Dr A Graves to K Watkinson, B Longhurst, P Rowlett, 21 May 2009 timed 17:47 containing Dr Graves suggestions.
(5) ACAS Guide for Managers and Employers: Bullying and Harassment at Work sourced at http://www.acas.org.uk/CHttpHandler.ashx?id=304&p=0

* Readers are urged to read both the 2005 Gus John Report and GEM Report which exposed a culture of bullying at the highest levels within the University. This writer is of the opinion that if the Professor wishes to avoid the possibility of accusations of double standards being levelled against the University, and the University are serious about addressing the issues raised in the  surely the best course of action would be for him to initiate an immediate investigation into the activities and behaviour of Dr Graves and Mr Watkinson over these issues.


** 'Dear Professor Hall

You are aware that the recent findings of the Employment Tribunal raised the matter of specific emails sent by the Vice Chancellor Professor Michael Harloe to staff and a later email sent by Dr (now Professor) Paul Rowlett to students whom I taught on the International Foundation Year within the School of Languages. The Tribunal’s view of these emails was unambiguous – the distribution of these emails throughout the University community was ‘inappropriate’ and that they were unfair.

I also wrote to you on the 29th March 2011 and the 3rd May 2011 raising several issues. Among other things, I referred you to evidence that had emerged at the Employment Tribunal hearings of March 2011 concerning an email sent by the Deputy Vice Chancellor Dr Graves to senior managers within the University. This email evidence showed that the Deputy Vice Chancellor Dr Adrian Graves specifically encouraged Mr Keith Watkinson, Professor Brian Longhurst and Dr Paul Rowlett (who were liaising with Dr Graves over the specific content of a response that was being prepared by the University to send to those students whom I taught) that they ‘might slip in the fact that the allegations include the harassment of a female student of Chinese ethnic origin...’ It is clear that Dr Graves was encouraging senior staff members to introduce a racial element into the email.

In my second letter to you, I informed you that I wished to instigate a grievance through the University’s grievance procedure against Dr Graves as he had encouraged these staff to undertake this inappropriate behaviour whilst I was in the employ of the University. The University refused to take action with regard to my reasonable request under the grievance procedure which allows for post employment grievances to be lodged by former employees.

The Tribunal’s statements on these emails is unambiguous. They note that the emails sent by Professor Harloe and Dr Rowlett were written in an ‘extreme way’ particularly with regard to the use of wording such as “vicious” and the recognition by the Tribunal that the University unfairly implied in these emails that I was being racist in my references to Ms Xiang Li. I’m sure you will agree that these statements by the Tribunal are serious matters.

The use of such language and phrases and the disseminating of such misleading statements to the wider University community and in the form of press statements to the local and national press has been personally damaging to my professional reputation.

As a consequence of the University’s above actions, I have been subjected to verbal abuse in the street having been called a racist by a member of the public who had read an article in the Manchester Evening News. This was witnessed by my wife and a friend. My youngest son has also been subjected to similar abuse and threatened with violence which is a direct correlate of the University’s actions in releasing such inappropriate statements to the local and national press. This caused and continues to cause me a great deal of anxiety and stress. The damage is of course ongoing as these statements released to the University community and the press act in your own words like ‘toxic shards’ which ‘hang around forever’.

In consideration of the above, and given the Tribunal’s finding in this matter, I wish to lodge a formal complaint against the former Vice Chancellor Michael Harloe for authorising the release of such statements to staff in the Salford Business School and to staff within my own former School; the School of Languages. I would also like to lodge a complaint against Professor Paul Rowlett for releasing such statement to those student whom I taught on the IFY module within the School of Languages.

In consideration of the involvement of Dr Graves in these matters and his senior position within the University, I would also like to lodge two formal complaints on two grounds:

•  firstly that he encouraged Rowlett, Longhurst and Watkinson to introduce Ms Li’s Chinese ethnicity into Dr Rowlett’s email; 
•  secondly, Dr Graves clearly has overall responsibility for the actions of those within the University’s Press Office who actively released such defamatory and unsubstantiated remarks to the local and national press. 

 In light of the Tribunal’s findings, I hereby ask that you withdraw all these comments and I would expect the University to provide myself and my family with an unreserved apology. I would also insist that this withdrawal and any apology is publicised throughout the University and among the entire University community via internal communications as well as through the University’s own website.

In addition, given the Deputy Vice Chancellor’s personal role in encouraging those managers below him to release information to staff and students that unfairly implied that I was being racist in my reference to Ms Li, I would also expect a separate unreserved apology from Dr Graves.

Finally, given that such comments were distributed within the local and national press, I would expect these comments to be publicly withdrawn in these publications and an apology printed in those publications concerned.

I look forward to hearing any comments you may have with regard to the exact nature of the investigation you feel is appropriate in order to investigate my formal complaints against the above University officers.

I would also ask that you provide me with a timescale for the carrying out of such investigations requested above and for a timescale for the publishing of the above apologies.

Yours faithfully

Dr Gary P Duke'

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 and if necessary provide an apology. So, to save £££sss please avail yourself of this opportunity if you really feel it necessary, which you can do by clicking here.

An Employment Tribunal (Part II)

The Author and the highly persistent Suffolkian Mr Longley

Yes readers. It's the time of year once again and it would appear that Part II of our Employment Tribunal (conveniently entitled Dr Gary Duke -v- University of Salford) is upon us. Next week's proceedings follow on from the previous two day hearing in March of this year.

A quick recap

For readers who are new to this case and for those who wish to be updated, you may recall that a certain chap was dismissed by his employer the University of Salford in August 2009 for 'bullying, harassment and victimisation' two members of staff, and for 'bringing the University into disrepute'. The cause of this, according to the disciplinary panel, was through the authorship and distribution of a series of satirical publications called the Vice Consul's Newsletters.

The evidence so far - no complaint

In March, the Tribunal heard how despite the University having a Code of Conduct on Bullying and Harassment that states that a formal complaint must be made of bullying and harassment for the employer to instigate an investigation, that no complaint of bullying had been made against The Author of bullying or harassment by either two staff members. This was confirmed by the witness evidence given under oath by the Chair of the Disciplinary Panel Mr Hopwood and the Finance Director Mr Attwell who sat as Chair of the Appeal Panel. 

The evidence so far - no written statements

When pushed, Mr Attwell also admitted to the Tribunal that no written witness statements from the two alleged to have been bullied and harassed had been sought or provided to this author. Similarly, both members of staff had refused to give witness testimony and attend the disciplinary hearing in August 2009.

The evidence so far - no damage to University

Under cross examination by the persistent Mr Longley, Mr Attwell could not demonstrate any specific evidence of damage caused to the University by the authorship and distribution of the Vice Consul's Newsletters, despite his upholding this allegation in the subsequent Appeal against The Author's dismissal.

The evidence so far - the prejudicing of proceedings?

The Tribunal further heard how senior managers had introduced in internal releases to staff and students and external releases to the press the issue of a staff member's ethnicity. This went much further when the Registrar (now Deputy Vice Chancellor) Dr Adrian Graves suggested in an email to these managers that they 'might want to slip in the fact that the allegations include the harassment of a female student of Chinese ethnic origin'.(1) Mr Attwell stated that he (Attwell) "cannot not be responsible for the comment of Adrian Graves". (2) Questions were raised with regard to how such actions were prejudicial to the disciplinary procedures and an attempt to poison the well of public opinion. This was refuted by Mr Attwell.* 

You foul b'stard

The evidence so far - a pre-determined outcome to the hearing?

The Tribunal also heard how an external PR consultant employed at the time by the University - Mr Ed Rowan - had sent an email to the Vice Chancellor Martin Hall, Dr Graves and head of HR Keith Watkinson on the 31st July 2009, providing a timeline for the Disciplinary Hearing, stating the exact day when the decision would be announced to this author. 

Mr Rowan also provided for Mr Watkinson's consideration a single press release with the outcome of the Disciplinary Panel - dismissal. Nothing unusual here one might think except this was four days before The Author's disciplinary hearing! No second draft press release was produced by Mr Rowan. No evidence has been presented or submitted to the Tribunal, or provided under document disclosure or two Subject Access Request to suggest Mr Watkinson considered asking for a second press release or that one was prepared in the event that the disciplinary hearing decided in this author's favour.

This three day hearing promises to open many more doors on the disciplinary processes at the University of Salford. You are of course cordially invited.

Employment Tribunal

Dr GARY PAUL DUKE;
-v- 
UNIVERSITY OF SALFORD

10:00AM on the 15th, 16th, and 17th August in the year of our Lord 2011

ALEXANDRA HOUSE, 

14-22 The PARSONAGE, 

MANCHESTER, 

M3 2JA

Notes and References

* The Vagrants have consistently put forward the opinion that this action from the Deputy Vice Chancellor was prejudicial and was also clear encouragement by Dr Graves for his staff to breach the Data Protection Act 1998 in releasing Sensitive Personal Information of a staff member.

(1) Email from A Graves to Keith Watkinson, Professor Brian Longhurst, Dr Paul Rowlett, dated 21st May 2009, timed 17:47, Subject: Petition from Languages Students

(1) From The Author's note of the second day of the Tribunal Hearing, 2nd 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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