DESTROYED IN COURT

0239 TRIBUNAL  EXTENDED REASONS & REVIEW part 4  

[this is part of the extended reasons, together with the response I provided to the Tribunal for review] 

Mr Mercer's Evidence 

27. Mr Mercer has sought to show that he has been bullied and put under unnecessary stress by Mr Kaye, Mr Laing, Mr Asch and other senior members of the University. We have found his written and oral evidence articulate, but occasionally contradictory. He is prone to exaggerate and to be bombastic. Many of the findings made by Mark Tulitt in his draft feedback reflect our experience of listening to Mr Mercer present his case before us in the Tribunal.

As well as not addressing the issue of bullying, which was clearly supported by the evidence of my two witnesses, this very prejudicial comment about me personally does not make any allowance for the fact that I was still suffering from severe depression and acute anxiety, and under personality modifying medication for these. Even so, I was not aware of any specific exaggerations I made; and despite OU counsel’s claim to this effect, he did not produce any evidence to support this. 

28. We were particularly concerned about the tape of the meeting on 6 November. Both the tape and the transcript tended to show exactly the opposite of what Mr Mercer wished us to believe. Mr Mercer is shown as being in control and dominating the conversation. He is clearly trying to contrive a future civil action. There is nothing other than Mr Mercer's own words on the tape to suggest that he was undergoing any form of nervous breakdown, or that anything said or done by Roland Kaye or Miss Stocks contributed to such a breakdown.

You will appreciate that I cannot comment on the tape you have. However, the transcript (which it is agreed was accurate) does not show me trying to contrive a future action. Indeed, I was so shocked at what was happening as to have difficulty in handling the current situation; which was leading to my breakdown. The possibility of a future action was, accordingly, the last thing on my mind; though it clearly was an issue for the Dean. I only mentioned grievance procedures when Katie Stocks introduced the subject, and my only comment on other legal processes was also in this context. The Dean however did introduce the notion of an action against me for defamation, and used this a number of times as a threat. 

29. Mr Mercer's contract claim depended heavily on his satisfying us that Paul Dixon had agreed that the study leave could be taken in full: so that when Mr Kaye and Mr Laing resiled from this, they placed the University in breach of contract. However, Mr Mercer eventually accepted that there had been no such specific agreement.

In fact I never claimed that Paul Dixon had agreed that my study leave could be taken in full; merely that he had told me that the VC had agreed to this – as the Dean, in oral evidence, admitted to. At the start of the proceedings, whilst I believed that an oral contract had, though, been made, I did not think a written (explicit) one had been made. During the hearing itself, not least as reported by the Dean himself, it became clear that the OU (and the Dean) believed that the communications from Professors Thompson and Bassingdale, in combination, added up to such a written agreement. Accordingly, I certainly did not accept that there had been no specific agreement. 

30. We were surprised at Mr Mercer's reaction to the University's letter of 21 November 2002. We accept that it is now evident that both parties were taken by surprise by the USS letter: but Mr Mercer's reaction was exaggerated and extreme and wholly unsupported by the document itself.

I am surprised that the Tribunal was surprised at my reaction to a letter which (as my response clearly shows) I genuinely believed was a threat of dismissal. It was not in any way an exaggerated reaction, where the whole of my career was threatened. In any case, my solicitors had agreed the content; and they clearly thought it was not exaggerated under the circumstances. 

31. Despite Mr Mercer's repeated assertions, we could find no evidence that the Respondents had imposed any form of detriment on Mr Mercer as a result of his protected disclosures. On the contrary, the evidence demonstrates the University undertaking a painstaking investigation into each and every one of Mr Mercer's complaints.

One very clear detriment, supported by my witnesses, was the bullying I received from the Dean (but which has not been addressed by the Tribunal); but his October 11 email also clearly threatened, in this context, that I would be severely disciplined. The only investigation the university undertook was into my one formal grievance; when – by virtue to the settlement - it effectively supported my claim. It took no action on my other complaints.

32. Equally, we could find no evidence of the University failing to comply with any reasonable adjustment in response to Mr Mercer's ill health (whether that amounted to a disability or not, and whether the diabetes alone, or all three conditions as claimed by Mr Mercer). On the contrary, the evidence demonstrates that as soon as there was any suggestion of ill health on Mr Mercer's part, the University arranged for him to be seen by Dr Sorrell. Dr Sorrell's reports demonstrate that there was no reasonable adjustment which the University could have undertaken in any event.

Whilst OUBS management did refer me to Dr Sorrell, they ignored all his demands for reasonable adjustment. For almost a year Dr Sorrell (supported by Dr Wilson) clearly identified, to OUBS and OU management, those reasonable adjustments which should be made. His statement that such adjustments were not possible reflected the refusals by OUBS management, not my position or my condition. 

33. We accept that the relationship between the Respondents and Mr Mercer was strained. But we are satisfied from the evidence that that state of affairs arose entirely out of the conduct of Mr Mercer himself. Far from being in breach of contract, the University was doing its best to comply with its obligations towards Mr Mercer. In particular, the University did not act in breach of contract in refusing the immediate and unconditional take-up of Mr Mercer's application for study leave. Whilst we accept that the University must be criticised (as they themselves appreciate) for failing to get to grips with the study leave issue generally, it was always wholly unrealistic for Mr Mercer to believe that the University could let him go for a period of three years without imposing any conditions. We find that the conditions imposed were reasonable, and that the issues that remained between Mr Mercer and the University were relatively minor. They were in any event a genuine disagreement, which the University was doing its best to resolve.

The very clear evidence of my two witnesses, under cross-examination, showed that the Dean had generally created a climate of fear and specifically had bullied me; and his email of October 11 2001 graphically illustrated just how bitter he was about m and how far he wanted to go in terms of punishing me; plans which, indeed, were put into practice in the 6^th  December conference.. Under these circumstances it is unreasonable to say that ‘that state of affairs arose entirely out of the conduct of Mr Mercer himself’. I never refused to be subject to reasonable conditions, since these are clearly stated in the OU’s T&C and implemented through its regular appraisal process; nor did I expect to escape such management monitoring. However, as the evidence of Alan Plath and the examples provided by the OU showed, the targets demanded by Angus Laing were unacceptable; especially for someone recovering from my illnesses. It should be recognised that the ‘resolution’ by the OUBS had, for whatever reason, quite unreasonably dragged on – without any final conclusion - for a year. The evidence (especially the oral evidence of the Dean) showed that the OU had, though, had actually agreed to ‘let me go’, in terms of being given (study) leave and working time, for the full three years - as I had reasonably requested – though the Dean was still finding detailed ways of opposing this. 

The Parties Submissions 

34. Mr Mercer's case is set out in an 83 page statement of evidence and 22 pages of written submissions. Mr Mercer's case is that Mr Kaye and other senior members of the University had been conspiring against him since the time of the Ethiopian Project, and more particularly, from the point at which Mr Kaye was made aware of Mr Mercer's 1998 grievance in October 2000. Mr Mercer believes that Mr Kaye, in particular, has sought to deprive him of a contractual entitlement to study leave, which he asserts was agreed unconditionally with Mr Dixon. Mr Mercer dismisses the University's attempt to monitor the proposed study leave. He rejects the offer of 14 months leave on the basis, apparently, that this deprives him of the balance of the period of study leave to which he is entitled.

Again I must state that Mr Dixon merely reported the actual decision of the VC; though of course this still amounted to a binding legal agreement. The OU chose not to produce Mr Dixon to rebut this. Again I must repeat that I never dismissed attempts to monitor my study leave. I did, on legal advice, reject the Dean’s offer (against the spirit of the VC’s agreement) of 14 months leave, as requiring me to abandon my rights; not least to the terms that the VC had agreed. 

35. Mr Mercer argues his claims of protected disclosure and disability from the position that these are procedures which will result in the lifting of the compensation cap for unfair dismissal. His case is that senior members of the University behaved towards him as they did, both because of the disclosures he had made in the past, and because they had wholly failed to comply with their obligation to make reasonable adjustments because of his disabilities. 

36. Mr Mercer asserts that the University's letter of 21 November 2002 asking him for his retirement date amounts to an assertion that his employment had ended, which amounts to constructive dismissal.

As agreed in the preliminary meeting in-camera, I now state that I believe that the letter of 21 November genuinely represented a threat of dismissal.