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.
*****
NOTES OF SUBMISSIONS
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]
-v-
The University of Salford
[the Respondent]
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]
-v-
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
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.
ALTERNATIVE PROCESSES
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.'
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
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.
ALTERNATIVE PROCESSES
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.'
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