For the attention of Academic Board members: Attack on Statute 18

Statute 18 is the statute in UCL’s constitution whose procedures and processes defend academic freedom for academic staff at UCL by making dismissal procedures more demanding. This is not about privileging academic staff. We know from other universities where these protections have been watered down that the entire university culture is undermined. These protections mean that departments are more independent of Senior Management and research groups are protected. 

This is a serious move by a Provost that worked behind the scenes to remove academic staff rights at his last institution.

We encourage all our members on the Academic Board to read this note before the AB meeting on Wednesday 1 Nov, to 

1. support the Academic Board proposal to create a Standing Working Group on Statute 18, and 
2. to consider Senior Management’s plan to create what they call a ‘Task and Finish Group’ in the light of the below.

A note on this and why it is important follows below.

UCL UCU Executive
www.ucl.ac.uk/ucu 
@ucl_ucu 
 

UCU Note on UMC Statute 18 Proposals

Summary of the below points (read text for explanation):

In Summary:

1. Statute 18 protections which provide for the right of the accused to be represented by a lawyer are in fact essential.
2. The law allows employers to dismiss a staff member not because they are provably guilty of an offence, but because a Panel believes that they might be guilty. These cases are determined by the civil standard of proof (that something is ‘more likely than not,’ or ‘balance of probabilities’), not the criminal standard (‘beyond reasonable doubt’). So the risks and dangers to academic staff, and their freedoms are career- and life-changing.
3. UCL's disciplinary procedures are supposed to have the steps that they do have in order to allow staff to mount a defence to allegations.
4. All disciplinary cases of this nature are ‘adversarial’. If one party is making allegations against the other, the other is going to argue that the allegations are untrue.
5. Statute 18 does not require legal representatives to be provided to present the ‘management case’. However, in fact UCL provides legal representatives both to support management and the panel charged with hearing the case.
6. UCL frequently protects complainants from having to face cross-examination, often to the detriment of the respondent. Indeed UCL frequently 'gags' respondents, and prevents them from approaching witnesses of their own, essentially limiting staff from mounting a meaningful defence.
7. There is no case for ‘simplifying’ Statute 18 but there is a case for creating long-awaited Regulations under Paragraph 17(1) of Statute 18. Were UCL to draft a proposal for such Regulations, Academic Board and UCU could then consult widely on issues of appropriate time-limits and requirements and hopefully address the procedural unfairnesses that we currently see. Alternatively if UMC will not do it, perhaps we need a Working Group of Academic Board to take on the responsibility.

We have become aware that the University Management Committee (UMC) are seeking to change UCL’s constitutional Charter and Statutes to alter the Statute that protects academic freedom, Statute 18. 

It is worth noting that a similar attempt to undermine this Statute was made by Malcolm Grant in 2012-13, and that this was overwhelmingly defeated by a campaign to protect staff rights. The present Provost is trying to push through an attack on the statute using similar arguments about the ‘onerousness’ of Statute 18 processes, and claiming that these are ‘overly confrontational’. However, rather than focus on making redundancies more straightforward, their principal target on this occasion is the disciplinary process.

Academic Board is being asked to consider a proposal by UMC to create a Task and Finish Group charged with proposing changes to Statute 18. The changes they want to make would undermine academic staff rights in internal UCL disciplinary Tribunals (panel hearings) covered by Statute 18 Part III, whenever these tribunals deal with bullying, harassment, and/or sexual misconduct allegations.

The current rights of staff are set out in Part III of the Statute. Where the Provost decides that a case is capable of meeting the test for Gross Misconduct and therefore may lead to a dismissal, a Tribunal hearing under paragraph 16 is set up. For more minor matters, the standard UCL Disciplinary hearing process is convened.

UCL wants to change the Tribunal process, but in order to do so has mischaracterised it. Many of the defects they refer to are not in the Statute, but arise as a result of UCL Senior Management’s choice! 

The Statute involves a right to be advised and/or represented by a legally-qualified representative (i.e. a lawyer) and includes a proper appeals process. The Tribunal hearing is a ‘quasi-judicial’ process similar to an internal civil court, but unlike a court, there is no obligation on complainants to appear before it.

All of the additional processes set out in Statute  exist because UK employment law offers very limited legal protections to staff against arbitrary dismissal. Employers are able to lawfully dismiss staff on the basis of limited evidence, and the only remedy is financial compensation at an employment tribunal. Although an employment tribunal may make an order of reinstatement, these are rare.

There is, rightly, a growing attention being paid to problems of sexual harassment and bullying in our institutions. But these cases need additional care, and should not be subject to a so-called ‘simpler’ procedure. 

Whenever anyone makes a complaint of this nature they are legally protected from retaliation, and they are assisted in a variety of ways by UCL in these procedures. If a complaint is not upheld, the complainant is still protected by the law. 

UCL makes a number of adaptations to support complainants. Often this means that they are not required to attend the hearing, or if they do, they are only asked to answer questions via the chair of the panel. UCL provides a barrister to make out the case against the employee, and another barrister to advise the Panel.

The onus is on the accused to defend themselves against allegations. If a complaint is upheld against the accused, they are usually dismissed immediately, and UCL will report this fact in any reference, which may mean that they never work in their chosen field again.

Whereas in a civil court, both parties are on equal terms, this is not the case in a disciplinary hearing. It is extremely rare for anyone to be disciplined for knowingly making untrue allegations, although the law does permit this.

This is a civil process, governed by civil levels of proof. This means that employers can dismiss staff, not because they are provably guilty of an offence, but because a panel believes they may be guilty. At the same time, being dismissed on these grounds may represent the end of an entire career in academia, and in many cases the end of the personal reputation of a colleague. None of that, or even the threat of that, is compatible with academic freedom in a context where there are polarised political views and outlooks.

Most cases where sexual harassment is alleged involve female complainants making complaints about older male staff. But this is by no means universal. UCU representatives have supported women staff who were harassed by male students, who made complaints to protect themselves from disciplinary action. We see a high proportion of BME and disabled staff among those accused. A common pattern is that students or ex-students (and sometimes postdoctoral researchers) make complaints, and staff are in the firing line.

Sometimes management sympathy for complainants crosses the line to active support and even ‘coaching’ of complainants. Occasionally it appears to UCU reps that managers are using a complaint to get rid of a colleague with whom they have a dispute.

As well as requiring great care, for UCL to set itself up as an internal arbiter of such cases requires a clear separation of powers between the ‘king’ (Provost), ‘judge’ (Panel chair), ‘prosecutor’ (UCL-appointed barrister) and ‘investigator’ (UCL-appointed manager or consultant). The temptation for senior management to influence these processes to dismiss the employee, especially if a case may attract media attention, is inevitable.

Many of these points were identified in the Commission of Enquiry conclusions, which UCL is largely ignoring.

What is UMC’s argument?

Senior Management is briefing staff claiming these processes are too “adversarial”, because they involve legal representation. However, serious disciplinary processes of this nature are necessarily adversarial, because someone is accused of gross misconduct and someone is doing the accusing, and the panel has to decide who to believe.

Management also says that ‘justice delayed is justice denied.’ But the main delay in these processes is due to UCL’s investigation, not the hearing. 

UCL usually takes 6-12 months to conduct an investigation, whether or not the process is covered by Statute 18. During that investigation the member is usually suspended from work, and is prevented from contacting staff, including witnesses (even via their union rep). Increasingly we are seeing cases where Management is denying staff the right to contact witnesses who might cast doubt on allegations before the hearing.

By contrast, the actual hearing may last 2 or 3 days at most. 

Far from there being a good case for simplifying hearings, if UCL wished to speed up the process for complainants (and respondents), they would invest in a prompt investigation process (courts generally expect employers to investigate complaints within 3 months).

Harassment claims are complex so they actually benefit from professional representation. In other words, ‘justice rushed is justice crushed.’

Management have said that the Statute process can be distressing for potential victims when they are called as witnesses. But any disciplinary process that involves due process will be distressing. UCL already uses mitigations such as having questions be directed through the chair of a panel . But having a process in which the evidence of those making allegations is not tested is a recipe for kangaroo tribunals and the denial of a means of defence to those who are accused.

Nothing is mentioned about the rights of those wrongly accused, in the management drive to modify or remove the statute. In fact, in the small print of the AB paper you can read that what management are really concerned about is the “risk of claims and reputational damage” to UCL, where complainants have been told by management that there will be a dismissal are dissatisfied, and sue UCL. 

Management suggest that the bullying, harassment, and sexual misconduct aspect of the changes they propose to drive through can be surgically removed from the academic freedom statute with no other effect. There are two basic problems with this claim.

First, where exactly does the line get drawn on a case-by-case basis? Who decides that a case involves an allegation of ‘bullying’ sufficient to trigger an alternative process? In the abstract this might appear clear cut in the case of sexual misconduct, but with bullying this is far from clear. If it is up to complainants, then most cases will be labelled as involving ‘bullying’ even if they concern, e.g. a dispute about intellectual property rights in research. The risk is that this simply becomes an easier route for management to dismiss staff.

Second, such a change makes the  Statute incoherent and even more “convoluted” (to quote  management), and will eventually lead to a move to remove the Statute altogether.

We all agree that Statute 18 protections are not perfect. Part of the problem is that Statute 18 requires Regulations in paragraph 17(1) which set out “[t]he procedure to be followed in respect of the preparation, hearing and determination of charges by a Tribunal.”  

Since 1988, when the Statute was created, UCL Senior Management have failed to propose such Regulations to the Academic Board. We would anticipate that these Regulations would set out reasonable timescales that prevent some of the worst problems for complainant and respondent alike. We would expect not to see, for example, people suspended for over a year whilst awaiting management to tell them what they have been accused of in any detail. 

Instead, Senior Management want to be rid of these protections, which have consistently helped UCU to defend staff, to prevent unfair dismissals, to prevent academic staff (especially women) being pressured to change their academic contracts by managers, and a great deal more.

UCU, despite our huge experience in Statute 18 and other disciplinary and grievance processes and standing up for staff has not been consulted about these Senior Management proposals, or about the Task and Finish Group that UMC has created to push them through. 

Nor are we represented on that Task and Finish Group, which has a Management-selected membership, and representatives from the Student Union, but not from the trade union that represents the academic staff and their rights.

Appendix:

Excerpted text from management’s Statute 18 removal justification:

“UCL’s disciplinary procedures are complicated and convoluted. They contain a multiplicity of required steps which elongate the process considerably (usually by a number of months), which is not helpful for either the complainant(s) or individual who is the subject of the process. For example, under Statute 18, disciplinary hearings are conducted as adversarial processes, with a “management case” and a “defence case” being presented by respective legal representatives , with the appearance of witness and complainants who are cross- examined - a process which is not dissimilar to a court hearing and can be particularly distressing for victims of alleged sexual misconduct, harassment and bullying, and acts as a strong disincentive on cases being pursued. It often compromises the complainant’s welfare, many of whom are more junior members of staff to the alleged perpetrator and, in some cases, young students of the University. To allow a reporting party and other witnesses to be questioned in this way is particularly problematic in sexual misconduct cases when the reporting party is often already extremely vulnerable. They can find the process further traumatising thus increasing the risk of claims and reputational damage.”