UCL rushes consultation of staff over very important policies on staff conduct

Read UCU's concerns and objections below. We encourage staff to participate in this consultation by the deadline of Friday 27th September

UCL has initiated an all-staff consultation shortly before the start of term on two policies that are extremely important and have far-reaching implications for students and staff. 

The two policies incorporate some feedback from the trade unions but consultation is far from complete. 

The policies are found here.

The position of UCL UCU Executive Committee towards these proposed policies is outlined below. 

We encourage staff to participate in this consultation. Please do add your own comments but also say whether you endorse the general lines of criticism advanced by UCU. 

Objection 1: Union consultation is not complete, and this is being rushed through

We believe that UCL should be consulting with staff over an agreed set of policies, not over ones with significant defects. However, since UCL has decided to press ahead with consultation, we are compelled to identify some of the problems in these documents.

These policies attempt to frame, in new terms, issues around personal and professional conduct at work and what should happen if a relationship develops between two staff members, or between a staff member and a student. (The policies do not apply to student-student relationships, but note that a PhD student may be considered 'staff' if they perform work for the university such as supervising or marking.) 

These issues necessarily overlap with a number of important areas in law, ranging from privacy and the right to a family life, professional standards and conflict of interest, health and safety and safeguarding, sexual harassment, 'ordinary' harassment as defined by the Equality Act, through to criminal law, stalking and the Prevention of Harassment Act. 

This matter is therefore extremely serious and deserves proper consultation with staff.

UCU is extremely concerned that UCL does not appear to be engaging in meaningful consultation with the trade unions over a significant change to staff discipline and conduct policies. Negotiation, or 'consultation in order to reach agreement' requires active engagement with the unions. To-date UCL HR developed drafts to version 7 before revealing them over the summer to staff trade unions. You will note that UCL is consulting over version 8. 

We have already raised substantive points of detail and procedure which we summarise below. If we knew what UCL's position on these were, this information would inform the staff consultation.

Objection 2: Lack of clarity on disclosures and disciplinary offences

The new personal relationships code creates a new offence of failing to declare a 'close personal or intimate relationship' which could lead to 'dismissal without notice'. (Currently, failure to disclose a relationship to an appropriate line manager may be a disciplinary offence should any misconduct allegations arise from it.)

The following clause is also unclear (especially with respect to past relationships):-

9.1. Any member of staff who currently has direct responsibility for a student or colleague AND is currently or has been involved in a close personal or intimate relationship with a student or colleague, where they now have direct responsibility for, or involvement in their academic studies or employment and/or personal welfare, must declare their relationship in confidence to their line manager or appropriate senior manager. If the party involved is the line manager, the next senior manager must be notified. All declarations will be treated respectfully, sensitively and confidentially. This includes same-sex relationships where the parties may not be “out” publicly.

Naturally, if the conditions on whether to disclose a relationship are unclear, or indeed, whether a "relationship" is in fact sufficiently close or recent to justify disclosing, staff will likely err on the side of disclosing to protect themselves, irrespective of any genuine risk.

The policy does not state whether failure to disclose is a disciplinary offence, i.e. one that requires a disciplinary investigation and panel to determine. Natural justice and the ACAS Code of Practice 1 says that it should, but it is an indication of the unfinished nature of these documents that the procedure is unstated.

Objection 3: Unclear definitions of core terms

Both documents outline common terms, some of which are poorly defined.

  • 'Consent' more generally refers to consent to sex, but it is never specified. 'Freedom to consent' confuses fears with threats, and 'power imbalance' (which is not defined but instead we are provided with an incomplete list of possible examples).
  • 'Intimate relationships' are given a circular definition. These, we are told, go 'beyond the bounds of a platonic or working relationship'. However, the point at which a friendship between two people develops into something more (possibly in the mind of one individual but not the other) is unclear. Since the question of when an 'intimate relationship' develops is both highly sensitive and private, and a trigger for the requirement for a staff member to disclose the relationship (as well as, potentially, a trigger for allegations), the current formulation is clearly insufficient.

Objection 4: Unclear processing of disclosure statements

UCL has proposed a disclosure process only in outline. There are no time limits stated, and there is no implementation period for the policy. 

The Personal Relationships Code establishes a new procedure for disclosing personal relationships to your Head of Department and may be discussed with more senior managers and HR, and - by implication - passed from one Head of Department to another when a new Head takes over. Details of disclosures are kept on personnel files.

Under the General Data Protection Regulation (GDPR), disclosures would be classified as 'special category data' (previously known as 'sensitive personal information'), and the other party may not have given consent to the disclosure. Lawful processing therefore requires great care, and yet UCL has not identified how this will be achieved. It is unlawful for a manager or anyone else to compel a gay man or woman to come 'out' at work, but that information will be contained in a disclosure. Confidentiality is paramount. 

We are told that 'Conflict of Interest Management Measures' will be put in place, and an 'Interim Measures Panel' may be set up (appearing, oddly, in the sexual misconduct policy).  

Objection 5: Failure to consider the potential for discriminatory impact

Where relationships develop between a staff and student the basic principle is that the two should be professionally separated - as at present, but this may be to the disadvantage of the student. A similar problem arises when a relationship develops between a superordinate staff member and his/her subordinate. The risk is that lower-graded staff will be expected to move, possibly into lower status jobs. 

There is no proposed monitoring for the Equality Impact of this policy. The Public Sector Equality Duty 2011 obliges UCL to advance an equal opportunity culture (aim 2). A fair and transparent policy on personal relationships could help eliminate discrimination, harassment and victimisation (aim 1), but it could also indirectly prove to be discriminatory, e.g. if female staff tend to be in subordinate positions, or if complaints against LGBTQ+ staff are treated differently to those against heterosexual staff.

The same is true for the Prevention of Bullying, Harassment and Sexual Misconduct Policy, where again, there is no Equality Impact monitoring.

Objection 6: Failure to properly define "sexual misconduct"

The Prevention of Bullying, Harassment and Sexual Misconduct Policy clarifies the potential for some allegations to be criminal ones, requiring reporting to the police and for a police investigation to be conducted. This is a statement of law. But it is still useful for staff to be properly informed of this.

A more significant problem is the unclear definition of 'sexual misconduct' in the policy. UCU's position is simple: any definition relied upon by UCL to discipline or dismiss an employee must be clear, and based on UK law (including for incidents that take place outside the UK, e.g. in UCL Qatar). 

Unfortunately, UCL's self-made 'definition' is a list of possible offences, civil and criminal, of varying degrees of severity, and one of which, 'non-verbal communication' is not an offence! Our proposal is simply to refer to the law:

3.10     Sexual misconduct  Sexual misconduct is unacceptable behaviour of a sexual nature. The term “sexual misconduct” is used in this policy to refer to two classes of behaviour. (a) Criminal behaviour, including sexual violence and assault, stalking and grooming, which is likely to lead to reporting to the police (and if found guilty, dismissal). (b) Sexual harassment as defined by the Equality Act 2010, which meets the definition under 3.6 but is related to sexual behaviour rather than a protected characteristic. It may range from sexual comments, touching and groping to unwanted sexual advances.

This has the advantage for all involved in knowing that the legal tests as to whether actions are, or could be, construed as sexual harassment or are otherwise a criminal act, are well defined and not subjective. 

Objection 7: Ill-defined new powers

In this policy, UCL creates new management powers that are ill-defined, including "Environmental Investigations". These are triggered without an allegation that can be investigated, but are apparently intended to improve the workplace environment by 'understand[ing] key behaviour and cultural concerns'. Whatever the intention, in the real world, we are concerned that these are likely to create more tension and distress than they solve. 

The process of disclosure apparently involves an "Interim Measures Panel" but it is unclear as to what the powers of this panel would be, when / how they might be reviewed, what the rights of both parties might be, etc.

What you can do