Home Up

DESTROYED IN COURT

0329 Tribunal Review 6 - Final Oral Submission  

[This was one of the submissions made by me, as part of the review of the Tribunal’s decision] 

Case No: 1200747/2003 - David Mercer v Open University

 

RECORD  OF DAVID MERCER’S ‘ORAL’ RESPONSE TO THE REVIEW

 

The Extended Reasons produced by the Tribunal contained an unexpectedly large number of errors. In terms of errors of omission, three of the four areas relating to the series of events included in the application were inadequately addressed, or not even mentioned. Of those mentioned, 55 out of the 77 paragraphs reported contained errors of commission.

 

Whilst it is not my role to speculate, I believe the reason for this may have been the initial misjudgement, by both parties before the Tribunal, of the time necessary for the hearing; since the main focus throughout the latter part of the hearing was on ways to shorten the proceedings rather than to serve justice. Apart from limiting the evidence considered, this seems at times to have meant that the evidence actually considered may sometimes have been used to confirm pre-judgments in the single reading which was all that time allowed. Whatever the reason, it is clear from the high level of factual errors that the approach did not handle the complexities of the evidence well.

 

The lack of time may also have not allowed adequate consideration of the very different academic environment. Further, counter-intuitively, the presence on the Tribunal of a consultant who had recently worked for the Open University (OU) may actually have exacerbated this – where his role with the OU administration seemingly was removed from the academic environment around which the case revolved. The result seems to have been that the Tribunal also misconstrued my part in the OUBS academics’ struggle to maintain OUBS standards and seriously misjudged my motivations as well as my reputation as a whistle-blowing champion of those standards.

 

ERRORS OF OMMISSION

 

The errors of omission largely related to central part of my case, which held that the constructive dismissal arose from a series of events rather than from any one single incident. In this context:

 

Breakdown of trust & confidence

Excessive workload, and

Bullying

 

representing three of the four areas involved, were not directly addressed – even when accepted by the Respondent.

 

This again may have been due to the time pressures on the Tribunal.

 

This meant that I was denied the opportunity for my arguments to be considered in these areas.

 

SIGNIFICANT ERRORS OF COMMISSION IN THE EXTENDED REASONS

[the slips which must be reported are shown underlined]

Para 6. By this stage of the hearing it had become clear that some of the documentation was probably not going to be needed in terms of the main issues that had emerged and – in view of the time pressures which were by then influencing the working of the Tribunal - the joint shortlist was intended as an aid to help the Tribunal manage its problematic workload.

This was not, though, a reason for it to abdicate any responsibility for its judgements; and the focus on shortening the process, and refusing to allow me to introduce additional evidence and witness, was contrary to natural justice..

Para 7. This statement in the Extended Reasons glosses over a very controversial issue. Thus, the Respondent had been aware of the existence of the transcripts from the second half of 2003, when the disclosure lists were compiled; and for our part we were fully prepared to provide the tapes to them. To our surprise, they did not ask for them. I have no written evidence as to when the Respondent did first ask for a copy, but I believe this was verbally, in the corridor, at the beginning of the hearing. Understandably, I was nervous about letting them out of my control at that time. Later, again during the hearing, I did however agree to lend them personally - overnight - to the Respondent’s counsel, subject to the strict conditions that they were not to be tampered with and were to be returned directly to me personally first thing the following morning. Most regrettably, OU counsel then broke this agreement, by handing them direct to the tribunal without my authority; justifying my earlier nervousness about whether I could trust them to him.

The Tribunal then placed considerable emphasis on them, despite my unreported objections. Here it incorrectly states that I – rather than OU counsel - had produced the tapes and asked the Tribunal to listen to them. It is not clear, due to the lack of necessary comment in the Extended Reasons, whether these tapes were then properly entered into evidence. However, they were not formally entered into the evidence list and I did not subsequently have the requisite access to them; even though I had not reviewed them for the best part of a year.

In any case, I had only provided the transcripts as supporting evidence for the series of events - and did not believe the single hearing of the tapes justified the weight the Tribunal has subsequently placed on them. The handling of this issue suggests that, in this respect at least, the correct procedures were not followed by the tribunal.

In fact I did object, for the reasons suggested by the respondent.

Protected Disclosures

 

Para 9. Whilst the details of what exactly happened are in dispute, it is agreed by both parties that the statements here are in error, for incident vii could only have occurred at the OUBS workshop on 13 September; a month before the October 11th email.

 

Para 10. The crucial decision reported by the Tribunal was that it had judged all seven incidents to be protected disclosures.

 

The subsequent discrimination, which was not reported by the Tribunal, was to be most obviously (and sufficiently) seen in the bullying reported by my witnesses.

 

Para 11. I was not aware of the existence of the October 11th email until the disclosure process during the latter part of 2002.
 

Disability 

Para 12. The fact (which was never challenged) that Dr Wilson formally recorded [pages 780-786] my depression as a ‘clinically well recognized illness’ – meeting the requirements of the Act - was recorded in paragraph 16. However, this is not  sufficiently taken into account elsewhere in the Extended Reasons. 

Para 13. The key fact that, as had been clearly reported [pages 810-811] by Dr Sorrell, my illness had lasted for more than 12 months - even by the time of his USS report - is to be found nowhere in the report. Neither was the fact that my illness had rendered me wholly unable to carry out my duties at the OUBS and, as such, ultimately met the stringent conditions for ill-health retirement by USS. 

Para 14. In the absence of OU comment here, their sole documented claim (covered in para 21 later) is that - in their view - only Dr Wilson's recommendations referred to ‘suitable conditions’. In fact, even in this event, OUBS management failed to implement any such condition(s)  - as their only subsequent response was to falsely claim that I had retired.

 

The fuller picture shows, Dr Sorrell, their own medical expert, had also clearly demanded - a year previously [page 294]  - that ‘suitable conditions’ be provided; but OUBS management had ignored this and every subsequent plea [pages 560, 600, 694, 773 and 796/797]  - despite the fact that Dr Sorrell clearly believed these would have been relatively easy to implement as indeed they would have been. 

Para 15. Following my taking over my case in person, in November 2003 (three months before the hearing), the Respondent immediately insisted on taking over the already finalised arrangements for obtaining a second expert medical opinion. For whatever reason, they then proceeded to ‘mismanage’ these arrangements so that the appointment finally made by them with a consultant they felt suitable fell in the week after the hearing. As this was manifestly unworkable, I had to agree to the Respondent’s suggestion that we should drop this evidence; since the alternative would have been another substantially delay to the hearing itself, which my worsening health would not have stood. We did, though, then agree that - as their own consultant - Dr Wilson's written evidence would suffice to meet the terms of the Act.  

More fundamentally, I definitely was not made aware at the outset (not even in the unrecorded in-camera pre-hearing) that, as the Tribunal claims, it "would determine these issues on evidence heard during the course of the substantive hearing". Had I been made aware of such a decision, I would have raised the strongest possible protest, and expected this to have been recorded in the Extended Reasons. Indeed, in disregarding the extensive written medical evidence I formally provided to support my case, the Tribunal was in breach of the precedent set by Kapadia v London Borough of Lambeth. Indeed, in stating that I did not ‘call any medical evidence’ and only gave ‘oral evidence’ myself which merely referred to ‘other reports’, the Tribunal signally failed to do justice to the significant amounts of formal medical evidence submitted in this form.  

Para 16. Once more this glosses over the contentious issues raised and fails to report the crucial decisions it took. As it had been agreed with the Respondent that Dr Wilson's evidence would suffice, and the Tribunal never indicated – even during the hearing as the evidence was presented - that it would require further support, I did not ask to call Dr Sorrell; until the Respondent controversially required that I agree to his case notes being provided. At that stage it became clear that, for a number of reasons, he had become the key witness. The Tribunal fails to report here that it denied me this witness despite my application for this to happen (as part of the interlocutory process)  - where it had earlier in the hearing agreed to call a late witness proposed by the respondent; though that too is unrecorded, as is the significant later decision by the Respondent not to put its last two witnesses on the stand.

In any case, most importantly, the only mandatory requirement imposed by legislation is that the psychiatric condition is - as in paragraph 12 - a ‘recognised condition’.

However, Dr Sorrell's undisputed, but unreported, comments on my angina – supported by the angiograms undertaken by the expert consultant at the Regional Cardiac Centre (the John Radcliffe Hospital in Oxford) - do answer the criticism made by the Tribunal in paragraph 15.

More fundamentally, the Tribunal's perverse selection and interpretation of just two paragraphs of medical evidence, which it follows up (in paragraph 26.26) by picking on one word from a two page letter - again suggests a fundamental misconception of, and failure to report the agreed facts.

Para 18. The crucial omission of the accepted fact, which was central to my case, that I was no longer able to undertake any of my daily academic work at the OUBS, (and ultimately was to retire on the grounds of ill health), represented not just a noteworthy error but suggests a significant degree of misunderstanding.
 

Para 19. Furthermore, the incorrect introduction of this as a precedent reflects the difficulty the Tribunal had in understanding at least this aspect of the law. Indeed, the case is irrelevant.
 

Para 20. This paragraph is incorrect in that, as stated in response to para 16, the only mandatory condition - that of a `recognised condition' - was clearly met. Further, the Tribunal failed to provide the necessary explanation of why they chose to disregard the other medical evidence to hand.
 

Para 21. Once again, this paragraph is both selective in its choice of evidence and incorrect in its analysis of that which it did consider. The evidence clearly shows that Dr Sorrell did not at any time, even when writing to USS [pages 810/811], say that no possible adjustment would have accommodated my disability, but rather that the issues at work (more specifically those under the control of OUBS management) were intractable. In any case, no comment was made concerning the OU’s failure to undertake the requisite enquiry and assessment to establish what the true facts were (as per Mid Staffordshire General Hospitals NHS Trust versus Cambridge EAT).

Further, in respect of 5(1)(b) it did not report that the Respondent failed to justify why it did not make the necessary adjustments.

In fact, as demonstrated by my email of 12th September (doc 146), far from being intransigent I had stated that "...in effect we now agree on all but a couple of relatively minor points”, an agreement stressed by Respondent's counsel in the hearing. The only sticking point then was the specific targets being unilaterally set by Angus Laing, which I - and the medical consultants - felt would pose problems for my convalescence; and which, in the light of Prof. Bassindale’s email, were irrelevant.

I am reassured that, although it was again not reported by the Tribunal, the Respondent has now agreed that Dr Wilson’s recommendations, at least, might have represented ‘reasonable adjustments’.

On the other hand, Dr Wilson further stated that he thought that retirement (the second option) was in effect a non runner, since it "would mean that Dr Mercer would probably suffer from a severe bereavement reaction "; as indeed I did and this extended my illness by more than a year. In respect of the option quoted by the Respondent he actually wrote "the third possibility, and I do not know if this is an option, would be for a compromise to be reached over Dr Mercer's study leave, so that he could be given say eighteen months of his study leave with a specific purpose of doing his research."

However, it was also not reported that, far from implementing this particular reasonable adjustment, the next (and only) response from OUBS was the letter claiming that I had retired.

Constructive dismissal 

Para 23. The Respondent's overall tacit acceptance, and actual acceptance by its counsel’s in his summing up, of the fact that ‘trust and confidence’ had actually broken down in early 2003, is significant in that such `breakdown in trust and confidence' is another of the series of events which led up to the constructive dismissal.  

Once more, though, this is unrecorded. 

The tribunal's findings of fact 

26.2 In fact, unrecorded here, my main role was as Director of this project responsible for its management as well as leading the teaching.

 

I was also, under the guidance of the FCO, the Presidential adviser responsible for coordinating communications with the Western ambassadors. These facts, apparently ignored by the Tribunal, might have been thought to provide some balance against the libelous attacks on my reputation.

 

26.3 Whilst I reported increasing stress in 1993 [pages131-136], this did not take the form of an official grievance.

 

26.5 This is, once more, incorrect since – as the OU confirm - I informed my line manager immediately.

 

In reply to the OU response, however, this report, in 1999, was more than two years before my final breakdown. It was at a time when my workload was much lower, and I did then believe it to be the situation that I could cope with this. When, however, my workload subsequently increased by a factor of five, this was no longer the case; and Dr Sorrell, clearly apprehensive about developments, later stressed that my position should be monitored. Accordingly the Respondent’s servants were fully aware of all my medical disabilities, but chose to do nothing about them.
 

26.7 In view of the Dean's revised claim that it was another protected disclosure - the alleged incident with David Parker - which prompted his actions against me (as documented in his 11th November 2001 email – [pages 558/559]), this may no longer be central to the overall argument.

On the other hand, the Extended Reasons fail to take into account [page 1,025] the late evidence coming from the belated provision of the Dean’s files which were illegally held (in terms of the Data Protection Act) on his own PC, where - in his email of 20 September 2001 - he had unequivocally stated that ‘David M gave me sight of a file which he claimed reflected his battles with David A…’

 

Moreover, the failure of the tribunal to record - let alone to follow up with the CPS as requested - the various incidents involving perversion of the course of justice (including conspiring to destroy evidence in a libel case [pages 523/524]) clearly evidenced by the Dean's own emails, or to comment on his criminally blatant breaches of the Data Protection Act, is unacceptable; as is, under such circumstances, its subsequent acceptance at face value, without any evidence of critical examination, all of his evidence.
 

Para 26.8 Although my medical problems may have come as a surprise to Roland Kaye, the record shows [page 244] they were well known to my line management, including the previous Dean. In addition, the Extended Reasons do not show that Dr Sorrell insisted that my condition be closely monitored.

 

Para 26.9 This paragraph should not baldly state that I was rejected for the shortlist by Mark Tulitt, since both parties agreed that this was against OU procedures.

 

Para 26.12 The error here is that – given my qualifications and suitability for the post (with a glowing reference from the external professor on the panel) - I was very surprised (indeed shocked) that I was not short-listed; though, in view of the political machinations taking place I did not expect to be given the Chair.

 

Para 26.13 The report should have pointed out, however, that the OU accepted [pages 623-628] that important elements of Mark Tulitt’s approach had breached its procedures.

 

Para 26.14 This paragraph is full of significant errors. Thus, it should have pointed out that, while I may have fallen short of Mark Tulitt’s idiosyncratic personality requirements, I had not failed those laid down by the OU, and - as this had not been discussed in the hearing - it was not entitled to say that ‘this was hardly surprising’.

                 

                  I had not lodged a ‘number’ of grievances, but only one (plus an informal complaint).

 

                  Apart from the usual academic disagreements, as my witnesses stated, I had only fallen out to any significant extent with one colleague (Tony Stapleton) and, of course, Roland Kaye.

 

I had not ‘often’ threatened libel proceedings; having only done this once; when a clear case of defamation (in fact slander) had occurred [pages 142-146].

 

                  Despite the OU’s claim, I did not introduce the ‘six incidents’. These emerged during the disclosure process and were introduced as part of Katie Stocks’ Supplemental Witness Statement and my document handed to the Tribunal (and not reported or even formally entered into the record) was intended to rebut these.

 

                  In general, many of the views expressed here involve unethical use of qualified privilege.

 

Para 26.15 As they do not relate to the legal issues involved, and the Tribunal’s views of the law on defamation are incorrect, these should not have formed part of the judgement. 

Para 26.16 In general, the flat statement of ‘facts’, without any requisite comment, does not do justice to the importance of this crucial email; which – whatever version you believe (be it bringing in the AUT, threat of legal action, release of the ‘dossier’ or the David Parker incident) - dramatically records the Dean’s long-term bitterness and anger at my whistle-blowing. It also very clearly records his strategic intent to cynically use whatever discriminatory method (including ‘to empty my pockets’) was available to ‘shut me up’. 

An issue here is that the Tribunal stated that it was specifically Mr Tulitt's correspondence which led to the 11th October email.  

Despite the OU’s comment, which seems to confuse the reference to Mark Tulitt with that to David Parker, I do not believe that the respondent's witness in chief made any claim to this effect.  

Indeed, had this been the case I would have brought the libelous document into play in the hearing since the conspiracy [pages 497/498] that this implied (as was supported by the communications held illegally on the Dean’s own PC [pages 1038-1042]) would have provided significant evidence in support of my whistle-blowing claims as well as the planned libel action. 

Whilst denying that I had been responsible for any incident with David Parker, I eventually had to accept the Dean's claim that he had believed I had. In any case, in line with the Tribunal's acceptance (para 9vii) that this was a protected disclosure, this still supported my claim to this effect. 

Para 26.17 The key point here is, however, that the tribunal fundamentally misunderstood at least one of the crucial facts in the case; in that, as accepted by the Respondent, this was not the meeting at which the alleged incident could have taken place.
 

Para 26.18 As I have not had access to the tape the Tribunal heard, I cannot comment definitively – except by reference to the transcript.

 

However, it is clear that the Tribunal made a basic error in claiming that both the Dean and myself were ‘threatening defamation proceedings’ against each other; a fundamental error which is especially important where the Tribunal (on the basis of just one hearing of it) seems to make the content of this tape central to its decisions.

 

It is true that, as the OU responds, I had previously made it clear that I might go to court on the (Chair) issue [pages 516-518]; and indeed it was my further claim at the tribunal that this was one whistle-blowing reason for the Dean's 11th October email.

 

There was, however, never any threat by me of an action for defamation as the Tribunal claimed.

 

In addition, the Tribunal’s concern over my mention of a ‘discovery process’ (rather than ‘disclosure’ which is the term now used) makes no allowance for the fact that I had sought to make myself aware of the relevant legal processes during my aborted claim for defamation a decade previously.
 

Para 26.21 As the evidence clearly shows, I actually was diagnosed as clinically depressed by my local GP practice [page 553] and started on a course of anti-depressants, immediately after the meeting of 6 November; where I had my breakdown. It was, though, only on the 13th November that I was, by law, required to hand in my first sick note.

Again, in conjunction with the tribunal's central (albeit now largely irrelevant) decision that I did not have a breakdown during the 6th December meeting, this once more demonstrates its failure to understand complex facts underpinning the case.

Para 26.22 The Tribunal here crucially makes misleading use of the Katie Stocks’ email, without comparison to the original email from Prof. Bassindale, which (according to OU rules) should have represented the real authority for the offer. His email [page 639] actually said:

“With reference to your memo about David Mercer and his accrued leave and study leave, given the information at my disposal I can only approve 14 months of study leave and 10 days of carried forward annual leave. I think you will agree that without proper records I have no alternative. However I can offer the following comments. An individual's workload is at the discretion of the Head of Unit. If you want to see David Mercer engaging more strategically with research then you are able, if you so wish, to agree that within the School. My strong recommendation is that you ask for a work plan with aims and planned outcomes for the accrued study leave. If David Mercer is able to deliver those outcomes within the stated timescale then it would be appropriate for you to consider the next stage. I do not think it would be useful to commit the whole period of time requested in one go. I hope this is useful.”

Thus, Katie Stocks email is clearly wrong, and for whatever reason (whether by accident or design) misleading, about two crucial points.  She totally fails to report the bottom line of the matter, where Prof Bassindale’s original clearly focused on the valid alternative that “An individual’s workload is at the discretion of the Head of Unit”.  Accordingly, this important suggestion was kept from me. As recognized by the Dean and admitted by him on the witness stand in the context of my cross-examination (specifically in terms of challenging where the missing letter of authorization from the VC was), this would have allowed me to undertake at least a further two years of research after the year of study leave had ended; exactly as I wanted.

Moreover, the lack of comparison hides the fact that Katie Stocks also falsely reported that Prof. Bassindale had said that further leave would be available when he had, instead, specifically ruled this out unless further evidence was forthcoming. As a result of my inevitable lack of knowledge about the true contents of the original email, and whatever caused the OUBS management to forget this, this non-existent issue unnecessarily became a bone of contention over the next months. As a result, the contractual arguments, especially those about the conditions to be met in order to grant the non-existent further study leave (which involved extensive recourse to legal advisors), had already been made unambiguous by the terms of Prof Bassindale’s email.

The subsequent OUBS responses were, thus, unhelpful and – by design or accident – unnecessarily prolonged the discussions and forced me to incur unnecessary legal expenses (in line with the Deans strategy of using legal processes to ‘empty my pockets’ described in the 11th October email).  

Rather misleadingly, OU counsel comments that Roland Kaye never admitted  that “…the Applicant should be entitled to a three year lump sum study leave”; where I never claimed this – only that I should have the agreed period (‘study leave’) for my new research.

Para 26.23 Once again this is wrong. After the initial referrals (latterly of 8 November 2001 [pages 555/556]) the evidence shows that OUBS management took no further direct interest in my health; and the ‘dialogue’ was continued on Dr Sorrell’s initiative.

Para 26.24 This paragraph is again woefully wrong. In the first instance, this was not a telephone conference but a face-to-face meeting; and the actual telephone conference – with Roland Kaye and Katie Stocks – is omitted from the record, along with the key decisions which took place.

Further, I never – at any stage – refused to accept the normal conditions which would be applied to my study leave; though I did object – as was my right – to the abnormally harsh targets proposed by Angus Laing.

I am especially indignant about the false claim that I was demanding unconditional study leave so that I “…could spend the remaining time before my retirement preparing a book.” Every element of this statement is false.  My study leave entitlement would only have taken me up to a year before retirement and it was never my intention to write a book in this time, and I certainly had never expressed such an intention. The ‘writing’ demanded by Angus Laing was of papers in learned journals.

Para 26.25 Though, in the absence of Paul Dixon on the witness stand, I believe the debate about what was said is now largely irrelevant, I deny that – as claimed by the Tribunal – I ever accepted that there had been no explicit agreement. I did agree that there had been no written agreement but continued to claim, as supported by my lawyers, that there had been a valid oral contract.

                 I do not understand OU’s claim that there was no discussion as to my entitlement to study leave, since much of the case revolved around this; though the failure to provide an accurate report to me of the true content of Prof. Bassindale’s email would have made much of this discussion unnecessary. I believe it may be possible that the OU lawyers involved are, like the Tribunal, confusing study leave to do research with ordinary leave to do nothing.

Para 26.26 I deny that I ever accepted that early retirement might be the only practicable course, since – not least – my lawyers would certainly have advised me to do otherwise, had this been put to me, though I accepted it seemed likely that this was all the OU would offer.

                 The statement that Dr Sorrell “…was satisfied that there was no adjustment that could be made to ameliorate Mr Mercer’s predicament…” was a gross distortion. In fact, he stated in his letter to USS “The issues causing the major stress at work are intractable and I do not see them as being resolvable.” Even then, the intractable issues, which Dr Sorrell had been trying to resolve for almost a year, were due to the adamant refusal of OUBS management to offer any form of suitable ‘reasonable adjustments’.

                 I did not authorize Dr Sorrell to make appropriate enquiries, he never asked for this, but only to release my medical reports.

Para 26.27 In the absence of any statement, written or otherwise, from Dr Sorrell, it is not possible to say that there was any ambiguity in the understanding between us. I was quite clear that he was only investigating the possibility, and the only direct evidence – his case notes – showed that at the time this was his view too. The possibility that the position could have been clarified by his evidence in person was abandoned when the Tribunal refused the request, made as part of the Interlocutory Order, to call him as a witness.

                 The OU response that “The first time the Respondent became aware of the application was when it received a letter from USS…” is not true – since not merely did OUBS management know what was happening but the official form (part 1) was submitted by Katie Stocks herself [pages 808/809].

Para 26.28 This ‘questioning’ took place during an unrecorded Pre-Hearing in camera immediately before the main hearing. In this I was persuaded by the Chairman to alter my claim that the letter was an explicit dismissal. I accepted that, as indeed was the case, I saw this as a ‘threat of dismissal’ – which still would have justified a case of constructive dismissal. However, at no stage did I agree that it was merely an ‘assumption’.

Para 26.29 The lack of comment by the Tribunal, on the subject of the OU failure to withdraw the threat of dismissal, is surprising.

Para 26.30 I do not know what the relevance is of my drafting a letter of resignation in January, so that my lawyers could have plenty of time to review it, but I did not write the one sentence covering letter to the ME5 nor sign this form, until I had handed in my formal resignation on 4th February.

Mr Mercer's evidence 

Para 27. Although this paragraph starts by referring to my claim that I had been bullied, the Tribunal nowhere actually addresses this claim. In particular, it does not refer to the definitive statements by my two witnesses who both – under cross-examination – made the point that a ‘climate of fear’ existed in OUBS and that, as the most outspoken critic of management, I had been subjected to the most bullying. 

                  I am not sure what the Tribunal means by ‘bombastic’, since the ‘theatrical language’ this implies is a necessary element of my role as a teacher and especially as a speaker to large international audiences. However, I believe that the Tribunal was opening a can of legal worms when it linked this with the libelous comments made by Mark Tulitt; unnecessarily commenting that “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”. Thus, despite my CV (which shows my long history of successful high level management) and my impeccable formal record within the OU (as well as the trust placed in me by various governments and international organisations), the Tribunal – without suitable qualification – placed itself in the position of agreeing with Mark Tulitt’s libellous summary that “…you will not effectively handle an influential job with people management or commercial management responsibility, just as you have not done so to date after all this time.” By gratuitously entering into matters which should only have concerned the High Court due to consider the matter of defamation, the Tribunal – albeit with (unethical use of) qualified privilege – fatally prejudiced my position. 

 

In any case, I very clearly stated that the libel was necessarily outside the jurisdiction of the hearing; and should play no part in it. As such, I made no attempt to answer the charges in it. In choosing to support the libel the Tribunal has, therefore, not only entered into an area where it has no jurisdiction but – in presenting just one-side of the argument - has not afforded me the opportunity to present my own extensive case concerning this. 

In answer to the OU response, I may have honestly accepted that a few of my claims were wrong in detail - as I should have done, where the details of many of the events had been hidden from me - but I certainly did not concede that I had made "mere puffs". I, and my solicitors, had spent the best part of two years making sure that the claims were as true as we could establish and were not exaggerated.  

Neither the Respondent nor the Tribunal have pointed to any evidence supporting the claims of contradictory evidence or of exaggerating the facts.  

Para 28. I only mentioned ‘grievance procedures’ when Katie Stocks introduced the subject and the only comments on other legal processes open to me were also in this context.  

In terms of dominating the conversation: I was desperately fighting for my future! 

In particular, I find it difficult to understand why the tribunal so easily dismissed my words which, in the transcript agreed by the Tribunal and the Respondent, included: 

"RK I am stating to you the university secretary's rules which have been passed down are if there is a letter from the university signed by the vice chancellor extending beyond the 12 months then (inaudible) ... the university rules are 12 months only.

DM OK (in resigned voice) I am telling you now that I cannot face up to that the only thing that has kept me going, saved me from a nervous breakdown, I have been suffering many of the symptoms of a nervous breakdown, the only thing that has kept me going is the thought that I only have to survive as far as April. Now you are denying me that safe get-out.

RK.. I ask for evidence, I ask for evidence David. I want to ask for evidence because you know the statement you have three and a ha f years..

DM well you are pushing me into a corner. You are pushing me into a bloody nervous breakdown on this.

RK I am not pushing you

DM I have already had my health immensely damaged, including a heart condition and I, I just cannot believe that you would hold a meeting like this. You would be silly enough to hold a meeting like this. I am sorry, let us break this meeting and let us bring in, I will bring in the AUT to represent me at the meeting. I will bring in a lawyer to represent me at the meeting.

RK bring a lawyer and I am happy to repeat what has taken place in here. (inaudible) nut what I am saying as your line manager "
 

Despite the possible misunderstanding, where the Tribunal may have thought that I did not go on sick leave until a week later, in fact I went as soon as possible from this meeting to my doctor's surgery, where I was diagnosed as suffering from clinical depression (and was prescribed an anti­depressant) and sent home on sick leave. Thus, if the Tribunal did not find evidence of a breakdown on the tape itself, this medical diagnosis provides definitive evidence that my breakdown did occur at that time.

Para 29. I have never said that my contract claim depended heavily on Paul Dixon’s words. Even so, I certainly have never accepted that “…there had been no such agreement.”

 

In reply to the OU’s response, Prof. Bassindales’s suggestions were not variations, but actions which clearly would have been acceptable within the existing T&C. The problem was that they were never presented to me, for agreement, by the Dean; and indeed the crucial email from Katie Stocks significantly (and falsely) misquoted them. Had they been so presented I would have accepted them. The fact that the Tribunal confused my acceptance that there had been no explicit agreement in writing with my belief (supported by the evidence) that there had been a binding verbal agreement, was surprising in the light of the time given over to this issue.
 

Para 30. Considering that my future was on the line, I do not believe my reaction was either exaggerated or extreme – especially where my solicitors had formally reviewed my letter [pages 474-476]. Indeed, despite the tribunal's perverse views, I still believe that any normal person in my position would have been shocked by what was being threatened.

Para 31. One very clear form of detriment was the bullying, described by my witnesses - and according to them occasioned because of my standing up to the Dean with these protected disclosures. This has to be one of the severest forms of detriment. Moreover, the strategy proposed by the Dean, in his email of 11th October 2001 [pages 558/559] and put into effect later,  included the statement that I should be severely disciplined (as in effect I was). As such it very clearly describes a number of planned detriments.

                 

                  The university undertook only one investigation – that of the 2002 grievance.

Para 32. This is untrue, since Dr Sorrell's earlier reports clearly show that he thought the necessary adjustments he was demanding would have been easy for OUBS management to make. The fact that OUBS management refused to consider his demands led to his later conclusion that the OUBS would not, rather than could not, make such adjustments. 

Para 33. There is some potential confusion here, since it is not clear who the “Respondents’ are meant to be. If, as elsewhere, this refers to Open University management then – until the very last – relationships were not strained. Indeed, the previous Vice Chancellor had invited me to dinner at his house, then considered by OU academics to be a mark of special favour, and arranged for me to join him (and then in effect partially replace him) on a DTI task force. If, as I suspect, it means the current Dean of OUBS, then relationships had been strained - not just with me but most of the academics (and especially the then Dean, Andrew Thomson) from the day he joined in the early 1990s. 

It may be that there is some confusion as to the hierarchical relationships. OUBS, like all the OU faculties, was run collegially. Thus, I was not – as in a commercial organization – required to obey the orders of the Dean without question. Instead, the ultimate ‘decision maker’, whose ruling I did always follow, was the School Board. At that time, Deans were ‘popularly’ elected by the School Board, and it was their job to implement the wishes of the Board. Thus, in a very real collegial sense, the Dean was my peer; though he chose not to recognize this. The situation was more like a legislature than a business. In this context I was the opinion leader of, and standard bearer for, one group of academics. Until the later 1990s, when the membership of the School Board was changed and academics became a minority overall, I led the majority view – which successfully fought to maintain the School’s traditional standards. It was in this role that I continued to be the whistle-blower; which the Tribunal may have considered (not least on the basis of the 11th October email) to have critically affected the Dean’s attitude towards me. 

On the other hand, the definitive evidence given by my two witnesses, and never successfully challenged, clearly indicated that latterly at least the state of affairs primarily arose from the Dean’s actions. This was true of the ‘climate of fear’ being experienced across the school and in particular of the bullying which I received. 

It seems possible that the Tribunal confused the actions of OU management, whose responsible actions I would not criticize, with the irresponsible ones of the OUBS Dean, which were not just unacceptable but at times illegal. 

In addition, the Tribunal, lacking direct experience of this field of academia, may have considered the period of three years given over to ‘study leave’ to be wholly unrealistic without special conditions being applied Indeed, there is a suggestion elsewhere that the Tribunal thought that study leave was the equivalent of an unconditional holiday – rather than the opportunity to undertake the serious research which academics are supposed to do. But the fact was that the conditions should have been – for the12 months actually on offer from Prof Bassindale – exactly what was contractually stated in the T&C. It is now clear that the full OU agreement, which was denied me by the Dean, intended that the remaining two years were to be offered as normal research work – as I would have wished – under the usual relevant T&C, to which I would have had no objections. In any case, although the dispute over terms was not finalized (since, as stated by my witness Alan Plath, those offered by Angus Laing were not viable), I never refused to be subject to reasonable conditions. Further, it is unwarranted for the Tribunal to retrospectively impose its own values on these agreements, rather than apply the OU’s T&Cs relating to the specific academic circumstances.  

The parties submissions 

Para 34. That the Tribunal accepted the respondent's exaggerated claims that I "dismissed the university's attempts to monitor the proposed leave", where I never refused to meet normal conditions, is once more a serious error.

 

It suggests that, once more, its reading of the written evidence, which clearly reported otherwise, was flawed; and due to the limited time available this might understandably have been the case elsewhere.

 

In reply to the OU response, as I believed that Paul Dixon was still an employee of the OU (with whom I had no contact) and had been personally involved in the matters, I was loathe to rely on his evidence. On the other hand, I assumed that - had it been in their favour - the OU would have called him to rebut the written evidence. I was surprised that the Tribunal did not also come to this conclusion.
 

Para 36. Once more, the word ‘assertion’ is used, where the actual word agreed in the pre-hearing was ‘threat’.

 

Para 37. The statement that Dr Sorrell’s advice (earlier in terms of my diabetes and heart condition and later in the context of my clinical depression) was “...that no reasonable adjustment could be made” was, as shown earlier, demonstrably not true.

 

Para 38. The flurry of OU internal emails in December 2002 [pages 821-825], which were the last recorded indication of what it then believed to be the true situation, showed it – rather than myself - to be in a state of complete confusion. 

The tribunal's findings 

Para 39. The tendentious claim by the Tribunal that my resignation was because “…I grossly misread the correspondence from the USS and the university” does not allow for the fact that my reasonable views as to what the situation was were fully supported by my expert legal team – and all subsequent communications were reviewed by them. It is also important to note that even during the hearing itself OU counsel was still attempting to prove that I had chosen to retire.

Had the OU chosen to withdraw its claim that I had retired, and with it the implied threat of dismissal as I requested, then (as per Harrison v Norwest Holst Group) its actions would not have amounted to constructive dismissal. But, despite the demands for such a retraction, they never withdrew the claim.

Para 40. The Tribunal goes beyond any evidence presented to claim that my prime motivation was my “…wish to take up enhanced ill health early retirement benefit rights”. This is without any foundation in fact. Not least, had I resigned several months later, at the end of the time given for me to consider the USS offer, I would have been able to collect my sick pay during this period; earning in the process up to five thousand pounds more. In any case, the idea that I might, from purely mercenary motives, want to give up the £40,000 per annum I earned – doing the job I loved – for £11,000 per annum in idle retirement must be viewed as absurd. I made it amply clear in the hearing that in fact the decision was forced on me by the 3 month deadline for submission of the case – a point which the Tribunal earlier agreed with.

Para 41. The Tribunal is free to take what decisions it may, but it is not open to it to assert that there was no evidence. Indeed, the only relevant written evidence, that contained in the 11th October email, clearly shows that the Dean was planning a campaign of harassment to ‘shut me up’; and the subsequent bullying described by my witnesses, along with the denial of other rights, plainly followed this pattern of planned detriment.

Para 43. Again, whatever decisions the Tribunal makes, it must not distort the truth. Thus, it cannot baldly state that “…there is no evidence of …any failure to comply with the duty to make reasonable adjustments.” OUBS management clearly ignored all Dr Sorrell’s pleas for reasonable adjustments and in terms of Dr Wilson’s recommendations (which are accepted in the OU responses as such ‘reasonable adjustments’) their only response was to insist that I had chosen to retire.

Para 44. This paragraph revolves around an interesting interpretation of a legal nicety, which seems to imply that any act of detriment had to have occurred no later than 3 months before the application (where the application in turn could be, and normally would be, 3 months after the most recent event). This will no doubt be decided by the EAT.

However, once more, the Tribunal repeats its tendentious claim about my supposed motives. In saying that they can find “…no other earlier incident which could be brought within the Tribunal’s jurisdiction…” they casually dismiss, without due consideration, a whole series of recorded events (from bullying through excessive workload to breakdowns in trust & confidence) which could be considered to have built up – as a series - to a case for constructive dismissal.

Para 45. Although this ignores the earlier series of events, it does at least record the fact that the OU failed to respond to my solicitor’s letters which, amongst other matters crucially asked for the necessary assurances regarding my employment position.

Para 46. In unequivocally stating that the early retirement decision arose from my “…instructions to Dr Sorrell” the Tribunal is once more ignoring the evidence; not least Dr Sorrell’s own case notes. At the same time, it cuts off the chain of evidence which actually covers this ‘instruction’ process.

Para 47. In view of the internal correspondence taking place at the same time [pages 821-825] it may be a trifle ingenuous to see Katie Stocks’ email as being an act of good faith. More important, this email clearly does not withdraw any threat of forced retirement/dismissal.

The most damaging errors, however, were those of omission where none of the preceding paragraphs cover the key claims of:

a)      Breakdown in Trust and Confidence – this, which was one reason for the large amount of evidence, was even supported by OU counsel in his closing statement; but has not been addressed by the Tribunal anywhere in the Extended Reasons.

b)      Excessive Workload – although this claim was supported by significant amounts of evidence it has not even been mentioned by the Tribunal.

c)      Bullying – this issue, which was at the heart of my various claims, was never addressed by the Tribunal despite the substantial evidence of my two witnesses which the Tribunal signally failed to record.

[back]     [home]

Hit Counter hits