email defamation & planned harassment for Employment Tribunal

This crucial internal communication, only disclosed when we asked the tribunal to force disclosure, was that sent by the Dean to the key members of OU Personnel department and thence to other staff. This email seemingly followed on a previous agreement with OU Personnel that a low-key approach to me was all that was wanted. As a result of my involving the AUT, however, this email shows that Roland Kaye was angry; to such an extent that he says that he “…finds my behaviour poisonous and also questionable as to mental state.” He ties this to the fact that I “…handed me a file of his correspondence with the previous dean [though this was presumably the 1998 grievance which was not, in fact, given to the previous dean but to the VC] when I became Dean. It is reasonable to say that his behaviour has been unacceptable for many years”. This direct link to my earlier whistle-blowing (especially as reported in the 1998 grievance dossier) is confirmed by the words (in the same paragraph) “… the only way to shut him up is…”. He then took the opportunity to once more offer Tulitt’s libellous ‘feedback’. Most important of all, however, he clearly stated his intentions for future action; “…bringing a legal action against him as possibly the only way to shut him up is to empty his pockets.”!

75. His email starts with the statement that my threat to take ‘independent action’ (that is involving the AUT, about which fact he had previously had discussions with Mark Tulitt, and possibly taking legal action) “…completely overthrows what has been agreed with Laurie, Paul and myself. This places all of us in an impossible position…”

76. The verbatim copy below effectively summarises the key evidence against him and the OU on a number of fronts. They are largely self-explanatory:

[NOTE: in view of its importance, this was also included at the beginning of this witness statement]

From: G.R.Kaye

Sent: Tuesday. October 11, 2001

To: P.Marsh

cc LW.Shein. P.T.Dlxon

Subject RE DAVID MERCER

SELECTION PROCESS DISCRIMINATION

Importance: High

This completely overthrows what has been agreed by Laurie and Paul and myself. This places us all in an impossible position. I would remind you that we agreed that:

1. Person specs: In this case the person spec was published with the further particulars. Mark Tulitt had a more detailed breakdown, effectively this was his brief based on an interview with Roland which was not given to candidates.

2. Mark was not asked to shortlist in the manner he indicated to David i.e. best candidate from top, middle and bottom of a spectrum. This was of his own invention. OUBS wanted the very best. In fact the three people that Mark put forward were, it would seem, at the top of the range - two have Chairs elsewhere and one is an SL who must be very close to a Chair. However Roland`s judgement is that the outcome was not affected by this idiosyncratic approach as David would not have been shortlisted against this competition. In other words David was judged to be in a middle group not the top group - had the shortlisting proceeded more normally by just considering a top group David would not have made the shortlist either. However we feel the practice highlighted is against what we put over in University policy i.e. selecting the best people for the job (and probably only makes sense if the client wants to see expensive/not so expensive/cheaper candidates) and OUBS will ensure that the search consultant involved in this exercise does not go against this in future.

3. We all agreed that Mark had been unprofessional in that abrupt e-mail to David. It was discourteous and not acceptable. Roland has subsequently spoken to him about this.

4. Just to clarity in case there is any misapprehension, Roland pointed out that he had only met Mark Tulitt about three times in the contract of services provided to OUBS.

5. Our interpretation of what David seeks now, from his e-mails, is feedback from MarkTulitt which will help in his self development for the future. In one of his latest Emails to Mark Tulitt he suggests that he is not seeking to be placed on a shortlist. Hopefully the exchanges will not have blocked feedback from taking place as we would hope feedback would be useful for David, but we would arrange some third party facilitation if that would help.

I have spoken to Mark Tullit as agreed. He accepts the concerns we had and has agreed to provide feedback [the libel] to a third party to counsel David.

Laurie has reported back to the Union who seem to be satisfied.

Paul was arranging for a facilitator to meet David and provide feedback and counsel but this now seems to be shifting to Paul and myself providing feedback.

I am prepared to do this but be aware that I am angry with David. I find his behaviour poisonous and also questionable as to mental state. He has ill health and on my recommendation he has already seen Dr Sorrell once re heart but not mental state [though in fact this was not true since it was Dr Sorrell who rejected the psychological review requested].

David handed me a file of his correspondence with the previous dean when I became Dean. It is reasonable to say that his behaviour has been unacceptable for many years. I am happy to tell him that. I will be delighted to draw on Mark Tulitt's analysis [again the libel] and feed that back. I do not think that this will be friendly and its is certain to create more problems. I am thinking of bringing legal action against him as possibly the only^, way to shut him up is to empty his pockets.

Given the above comments you may wish to use someone else to facilitate. Or are you saying this is one where you wish management to exercise its rights to give honest feedback to staff and probably a discipline warning, at the same time. If so I am delighted to do this.

77. In this one email, which is crucial to my case, Roland Kaye shows that he is determined to stop my whistle-blowing by forcibly‘ shutting me up’. In the full knowledge of my mental state, he then deliberately plans to do this by destroying me financially. Not least, he would be ‘delighted’ to give me the ‘honest feedback’ which Mark Tulitt had libelously published. Less than a month later he put these plans into effect in the meeting of 6 December 2001.

One key to this email is the set of emails which preceded it. These showed how I planned to bring the AUT into the situation and to take legal action; as indeed I did, the final act of which was the Tribunal itself. It was, though, also possible, as the paragraph about the 1998 dossier suggests, that the earlier whistle-blowing was a contributory cause of the Dean’s anger. On the other hand, the best evidence indicates that it was the more immediate threat of legal action (combined with the earlier proof that I did live up to my threats) which led to his anger.

In the Tribunal, however, the Dean initially claimed that it was my ‘defamation’ which was the real cause. When, though, it was shown that he had been advised by Personnel a week earlier that there was no provable defamation, he changed his story to that of to the recent whistle-blowing, alleged by him, for the very embarrassing decision by the newly appointed Professor of Strategy not to take up his appointment. He angrily reiterated this view publicly at the Tribunal, despite my protestations that I had in fact commended the OUBS to the new Professor, and said it was that action in particular which he thought was poisonous. It might, therefore, seem that all three elements (two true and one imagined) might have been the joint causes.