Question and Reply meeting on matters relating to EJRA
Report of proceedings
At the meeting of Congregation on 31 October, the question and reply were taken as read and seven supplementary questions were asked by Professor Ball, Queen's and Professor Ewart, Worcester. The full text of the Question and Council's reply are reproduced in Gazette no.5185, 9 November 2017.
The supplementary questions, and the replies which have been approved by Council, are set out below.
Given that it is stated on the updated Personnel website that ‘final arrangements are subject to approval by Council on the recommendations of the Personnel Committee later in MT2017’, will Council clarify exactly what is referred to in its reply implying that these have already been approved by Congregation: the new procedures that incorporate the changes approved by Congregation in May 2017 will be monitored by the Personnel Committee and the next review will take place in 2021.
Congregation agreed changes to the age and coverage of the EJRA in May 2017, to take effect from 1 October 2017. The revised policy and procedure that take account of these changes and of the other recommendations of the EJRA Review Group were considered by Personnel Committee on 19 October and recommended to Council. Council considered them on 27 November and approved them for immediate publication on the Personnel website. They will be monitored by Personnel Committee and reviewed in 2021.
Council says that ‘the judgment of Sir Mark Waller concerned procedures that are no longer in use; several matters about which he expressed concern were addressed in the procedures that have been in place since 1 October 2015’. But he also expressed concerns about those amended procedures and, according to the letters sent to all those affected, these procedures are to be employed in the consideration of applications made by those due to retire in 2019. Will the Council explain why it considers it fair to continue for so long with procedures it admits are only partially amended?
The procedures in place from 1 October 2015 remained in operation for applications submitted on or before 30 September 2017 following the vote of Congregation to adopt the changes recommended by the Review Group. This includes applications from those with a 30 September 2019 retirement date. This is because a) the revisions approved by Congregation have a date of effect of 1 October 2017, b) time was needed to prepare a revised policy and procedure and for the drafts to be considered by Personnel Committee and Council, which do not meet in the summer vacation, and c) applications for the 30 September 2017 deadline were already in train.
Applications for extended employment submitted from 1 October 2017 will be subject to the revised policy and procedure discussed in question 1 above.
Given that the Appeal Court was expressly constituted under the North statutes to be compliant with the requirement of the Human Rights Act 1998 that it be an independent tribunal1, will the Council explain how the University Appeal Panel meets that requirement as a substitute avenue of recourse for appellants under the EJRA?
The reference within the Gazette Supplement that is footnoted in the question indicates that in 2001 it was thought to be important to set up a Court of Summary Jurisdiction to ensure compliance with the Human Rights Act. Over 16 years have elapsed since that decision was taken and nearly 20 years have elapsed since the enactment of the Human Rights Act 1998. During that time the understanding of the requirements placed upon employers by the Human Rights Act 1998 has become clearer as a result of numerous judgments by the civil courts and the European Court of Human Rights.
The provisions of the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights do not require employers to have an external appeal body to hear appeals brought by employees. In most situations the Article 6 requirements will not apply in internal appeal hearings.
In any event, it is noted that the membership of the University Appeal Panel is drawn by lot from a pool of people who were elected from the whole of Congregation. Regulation 7 of Council Regulations 3 of 2017 specifies that a person is ineligible to serve if they have a prior involvement in the case or conflict of interest. Therefore, the members of the University Appeal Panel are both independent and impartial.
Council is not aware of any other University in the UK, including Cambridge, that has an appeal body which is chaired by external lawyers and Council understands that employee appeals in the Higher Education context are generally heard by individuals or panels that are internal to the relevant organisation. The vast majority of employers in the UK have appeal mechanisms whereby appeals will be determined by a single senior manager appointed by management. Council understands that this widespread practice has never been considered to be a breach of an employee’s human rights.
Given that Council has only given examples of ‘changes made’ in response to the concerns expressed by Dame Janet Smith and has not related them specifically to passages in her now published judgement, will it provide a full list with paragraph references to the judgment?
The original response is copied below with paragraph references to Dame Janet’s judgment inserted.
In response to Dame Janet Smith’s concern that the views of departments and divisions had too much influence over the outcome of individuals’ applications for employment beyond the EJRA (paras 86-88 of the judgment), changes were made to the application forms and processes, such that:
individuals now submit their own applications, rather than departments managing the application process,
departments are only asked to provide factual comment on aspects of the application and not to “support” it or otherwise,
departments are asked to confirm that informal discussions have taken place and that options other than extended employment have been discussed (responding to paras 32 and 75 of the judgment),
there is no contested case hearing when there is divergence between the views of individuals and departments;
The ‘Considerations’ (the type of matters to be taken into account when deciding whether to approve an application for extended employment) were restructured and clarified e.g.
concerns that the link between the Aims and the Considerations were unclear (para. 84 of the judgment) were addressed by the inclusion of an introductory section to the Considerations (para 36 in the EJRA policy). This makes clear that applicants holding substantive academic posts are expected in most cases to vacate those posts and to self-fund their new specially-created, fixed-term post, in order that their substantive post can be refilled in support of the Aims, particularly those relating to inter-generational fairness, diversity and refreshment;
references to academic distinction were removed to avoid giving the impression that decisions included an element of selection on the basis of performance assessment (responding to paras 74, 88 and 100 of the judgment);
The need to avoid performance management was removed as an Aim of the EJRA Policy (paras 55 and 67 of the judgment); and
‘Prospective applications’ i.e. those made by departments on behalf of newly-appointed staff were removed (para. 45 of the judgment).
A full description of the changes made can be found in the Gazette dated 4 June 2015. The changes reflect not only Dame Janet Smith’s judgment but also confidential and privileged legal advice and the experience of those who had operated the procedures.
Those who wish to compare the procedures in place before 2015 with those effective from 30 September 2015 will find them here:
Council states correctly that ‘the Statutes provide for Congregation, rather than an external judge, to have the power to repeal, amend or add to the Statutes and Regulations’. However, given that the Council has accepted the decisions of two external judges as constituting preliminary determination of the lawfulness of the University’s EJRA procedures and then made changes accordingly, and given that Dame Janet Smith held ‘that the University cannot rely on the EJRA to show that the dismissal is automatically fair’ (para. 72), will the Council explain what internal avenue of recourse will now be available to an appellant who wishes to challenge the fundamental lawfulness of the procedure, given that both Dame Janet Smith and Sir Mark Waller held that the Appeal Court had jurisdiction to consider that question?
Council has not accepted the decisions of the Appeal Court relating to the EJRA as determinative of its lawfulness. It has considered each of the decisions in the context of its confidential and privileged legal advice and taken steps to refine the Aims of the policy and the extensions procedure as it deemed necessary in each case.There are various mechanisms through which members of Congregation can raise matters concerning the policy and administration of the University. The resolutions put forward by members of Congregation in relation to the EJRA in Trinity term 2017 are examples of individuals doing just that Questions of lawfulness or otherwise are appropriately to be determined by the civil courts and tribunals, as they would be in relation to actions taken by any other organisation. Those who believe that the EJRA extensions procedure has been misapplied to them may appeal to the University Appeal Panel, as individually notified.
In its Reply the Council speaks of ‘Considerations’ defining them as ‘the type of matters to be taken into account when deciding whether to approve an application for extended employment’. Will Council explain how the ‘procedures’ so far published at any stage in the EJRA comply with the requirements for the application of agreed criteria by systematic and recorded ‘evaluation’ by panel members, as set out in Universities Funding Council ex p. The Institute of Dental Surgery  EWHC Admin 5 (30 July 1993), at: that the respondent, … recognising, as the respondent does, the need for uniformity and consistency of approach, did not work by agreeing the criteria by which it would judge … so that each panel member might before and after discussion make an evaluation within an agreed range on each criterion. The form to be completed on behalf of the Division requires an evaluation of the strategic importance of the work. Will Council explain how this evaluation can be made without reference to the ‘academic distinction’ of the applicant’s work?
The Considerations, which are given at Section VI of the Procedure, operate as the agreed criteria used by the EJRA Committee when it evaluates applications. Each of the Considerations is carefully considered in so far as it is relevant to the individual case, within a gathered field, by an experienced standing Committee, the majority of whom are senior academics. This provides for consistency of treatment. The Committee’s decision is recorded in each case in the minutes of the meeting and reasons are given in the outcome letter to the individual applicant.Strategic importance is distinct from academic distinction, the former relates to the divisional research priorities and relevant strategic plans. Individuals may be doing work of considerable academic distinction, which nonetheless is not of strategic importance to the division. It is expected that the division will in each case assess the strategic importance of the work proposed to be carried out during the extension requested in the context of the divisional research priorities and relevant strategic plans. This process is not an assessment of academic distinction.
Given that the Council has not replied to the request that a full Report be presented to Congregation but has merely ‘commented’ that ‘Congregation has considered the EJRA repeatedly over the last 18 months and has decided on each occasion that it wishes to retain it’, will Council explain how Congregation was able to do this relying on the necessary information it needed to give informed approval, when it had not then had an opportunity to read the Appeal Court judgement of Dame Janet Smith?
Congregation had a wealth of information available to it in considering the EJRA. In particular, in the most recent votes in May 2017 (when Congregation voted to make changes to Statute XIV and Council Regulations 3 of 2004 in order to enact without amendment the recommendations of the EJRA Review Group that the age of the EJRA be increased by one year to 30 September preceding the 69th birthday and that the coverage of the EJRA be limited to those in grade 8 and above, and to reject a motion for abolition of the EJRA), it had the extensive report of the EJRA Review Group and its annexes.