DESTROYED IN COURT
0429 TRIBUNAL - CONSTRUCTIVE DISMISSAL
[A crucial part, one which ultimately was not accepted, of my submission to the Tribunal]
Having failed in its attempts to force my hand by setting impossible objectives, and while the new correspondence between my solicitors and the VC was under way, the OUBS then sent a letter unfairly terminating my employment by falsely using ‘retirement on the grounds of ill health’ as the reason for this. The reality was that Dr Sorrell’s letter had – as confirmed in the OU’s initial defence document - merely suggested that he would see if retirement on the grounds of ill health was a possibility. Despite my response formally correcting the OU’s mistake and clearly reporting the actual situation, the OUBS in its reply refused to withdraw this termination; and, accordingly I was unfairly (and constructively) dismissed. Despite further prompting by my solicitors, and with the evidence of the sustained previous attempts to stop me returning to work, I was eventually forced to formally take this as unfair (constructive) dismissal.
111. While the new communication lines with the VC were opening, and having failed in its attempts to force my hand by setting the impossible objectives, the OUBS shifted its approach once more. Having received a letter from the USS Pension Fund, approving my retirement on the grounds of ill health in line with my request for Dr Sorrell to investigate the possibilities, OUBS management seized on this opportunity, and sent a letter (below) unfairly terminating my employment.
Mr D S Mercer
2 Marshworth
Tinkers Bridge
Milton Keynes
MK6 3DA
19 November 2002
Dear David
I understand that you have applied for ill health retirement and I would be grateful if you could please confirm that the 30 November 2002 would be an appropriate date for this to take effect.
Yours sincerely
Maureen McManus
Administrator, Human Resources Team
112. The reality was that Dr Sorrell’s email to OUBS had – as confirmed in the OU’s initial defence document - merely suggested that he would see if retirement on the grounds of ill health was a possibility. Following a request that paperwork be prepared by OUBS for an enquiry (“…application to USS for consideration…”) by him, by which time his letter (which I never saw) unfortunately talked about an application for early retirement, USS agreed that my health had indeed deteriorated to such an extent that it justified retirement on the grounds of ill health; and USS – in respect of their quotation - gave me six months to either take up this offer or reject it. However, despite this mistake by Dr Sorrell, at no time did I ever accept, or agree, that this was a formal application for retirement.
This became a major issue at the Tribunal, when the OU demanded, against my objections, that I authorize the release of Dr Sorrell’s confidential clinical notes. In fact the only relevant element was the last line of these notes, where Dr Sorrell simply had noted “…requests a case be made to USS”. This was exactly as I had claimed!
113. In the first instance I assumed that the claim that I had retired was an unfortunate error; especially where the VC had now received a letter from my solicitors clearly continuing the previous negotiations at a higher level. Accordingly, I responded by email to the OUBS termination letter (with a copy to the VC), as soon as I had taken legal advice to make sure my response was legally as it should be.
From: D.S.Mercer
To: M.J. McManus
Cc: B.M.Gourley; wong_pictons; helen_pictons
Subject: Your Letter of 21 November 2002
Importance: High
Sensitivity: Confidential
You will appreciate that the brief - but explosive - content of this letter came as a considerable shock to me. You will also realise that, due to the very short timescales you have allowed, I have not yet had time to discuss in full, with my legal advisors, the complicated legal issues involved. On the other hand, my solicitors are already in contact with the Vice Chancellor - and hence this email is only submitted in order to urgently clarify the situation, for your benefit, without prejudice to my legal position.
It is essential, however, that you urgently recognise that I am still considering which of the possible options to follow.
Clearly the three main options suggested by Dr Wilson have to be the front runners. I was, therefore, glad when Dr Sorrell kindly offered to explore the possibility of USS retirement on the grounds of ill health; since this potentially changed the attractiveness of the various alternatives.
However, I have most certainly not - as you state -'applied for ill health retirement'. Moreover I have not at any stage even asked the OU pensions department to apply for this; and indeed, as this is in the gift of USS not the OU, I still have another five months to do this should I want to. I repeat, as yet I have taken no final decision. Your assumption that I had taken such a decision was at best strangely ill-informed, in view of the OU systems which should have told you this was not the case, and very ill-advised if it was intended to pre-empt my employment rights. Thus, your very unwelcome attempt to 'persuade' me - bounce me might be a better description of the technique - to 'confirm ... an appropriate date' is at best totally inappropriate and, in my opinion (without, however, having the advantage of expert legal opinion) at worst might be construed - especially in view of my present mental condition - as an attempt to push me into agreeing to a course of action which might be seriously detrimental to my future.
Even so, for the record, in view of the significant problems currently besetting OUBS management I am not unsympathetic to their plight, In this context, I fully understand their desire to urgently complete - by whatever means - a clean sweep of opponents to their plans for the MBA Programme; especially now that they have finally forced the public abandonment of the previous development agenda. In this context, my remaining supporters - of the traditional MBA standards, collegial in terms of the management approach as well as those of the academic standards - have now also been removed; Richard Wheatcroft (the Programme Director) having resigned in protest, the Programme Manager being on long-term sick leave reportedly also with a nervous breakdown, and Alan Plath (the main developer of the V3 MBA which has now been cancelled) having resigned to go to another university; and the recommendations of the University's Establishment Review, which I stimulated, are now sufficiently distant in time to be discretely ignored. All the same, it is worth noting that, although I have in the past been the fiercest critic of this erosion of the values which have previously made the OUBS MBA so successful - both in terms of its academic standards and numbers of students - and I have (perhaps justifiably) been seen as a whistleblower determined to maintain OU standards, I have already stated publicly that - not least due to my health - I would no longer be participating in any more of the debilitating OUBS political battles. Nevertheless, I imagine that some members of management might still worry that - given sufficient provocation - I could still do so. In particular, they may be anxious that the looming court cases might bring these unsavoury facts to the attention of the wider public; and especially to the broadsheets who have been so supportive of my previous work.
Whilst I also understand the pressure now being applied by OU management to save costs, and in particular their public attempts to apply the maximum force to 'persuade' staff to take early retirement, you will understand that I must strenuously object to OUBS management's attempts to achieve this in my case by - not least - denying me my rightful (contractual) leave entitlements. As you should also know, these matters are currently being negotiated by my legal team with the Vice Chancellor; and as such must effectively be sub judice.
You will not be surprised therefore that my legal team have, in particular, instructed me not to do or say anything which might prejudice these negotiations. Even so, they have directed me strenuously to oppose your precipitate decision and under no circumstances to submit to the pressure - to accept the proposed termination of my employment - being applied in this way by DUBS management.
...
In view of the many recorded previous attempts to force my hand, and the considerable pressures which have been imposed on me - in total contradiction of the OU's own guidance (ranging from handling sick leave, through stress management to bullying) on such matters - I suppose your latest news should have come as no particular surprise. It merely brings into the open what has previously taken place at a more clandestine level.
Even so, I was taken aback at the very strange manner in which the current position, no matter how constructed, was presented to me. Indeed, after nearly fifteen years of devoted service to the Open University, it came as more than shocking that I was apparently being given just one weeks notice of this (falsely based) 'termination' of my employment (where your letter, though originated on 19 November, did not reach me until 22 November); especially where, once more, none of the required procedures had been followed.
You will therefore, once again, understand why I must steadfastly refuse to be bounced into 'confirming' this as you suggest.
As my legal team have already contacted the Vice Chancellor, and this must take precedence, I will - again without prejudice- also copy this email to her. In this context, and reflecting your own obvious sense of urgency, I would ask her to bring these negotiations to as rapid a close as possible. They have already been underway for more than a year, without any obvious progress on behalf of OUBS management, and the stress of this has significantly retarded my recovery and indeed has further damaged my health. Time really is of the essence here. Even so, I will not suggest that the situation should be decided in a week as you seem to think possible, but would ask - once more without prejudice - that within no more than a month, or at most two, these negotiations are satisfactorily concluded.
David Mercer
Director of the Futures Observatory
Home: 2 Marshworth, Tinker's Bridge, Milton Keynes MK6 3DA
Work: Open University Business School, Walton Hall, Milton Keynes, MK7 6AA
Phone: 44 (0) 1908 232165 Work: 44 (0) 1908 655888 Fax: 44 (0) 1908 232165
This unmistakably corrected the OU’s mistake and very clearly reported the actual situation. I undoubtedly stated that – as I was still undecided – I had never applied to take early retirement. Aware the OU letter had in effect been a formal dismissal, though, I also strenuously urged the OU to withdraw this – since I still hoped to find some suitable route forward within the OU (and had employed Pictons Solicitors with this aim in mind). Without doubt, I clearly and unambiguously stated that I had not applied for ill health retirement or even asked the OU pensions department to apply for this. My response was backed up by a further letter from my solicitors to the VC attempting to clarify the situation, in which – still attempting to take a positive view of what was in reality an impossible situation - it was said that “it is not clear whether our client’s employment has been terminated or whether he continues to be employed.” and formally once more asking for confirmation of the true situation. In view of the obvious urgency, this letter also set a deadline for reply of 7 January 2003. Once more this letter to the VC was never answered.
114. The disclosed documents show that my email response, at least, generated a flurry of emails within the OU which were expected to culminate in a meeting on 2nd December 2002; though the OU states that, bizarrely, in the event my situation was not even mentioned at this meeting! The evidence of these emails suggests that, without a personal contribution from Dr Sorrell – and without the benefit of the transcripts of my meetings with him and seemingly (despite my clear references to this in my response) without any mention of the parallel communications under way between my solicitors and the VC - OU personnel department were falsely led to believe that I had formally asked to apply for ill-health retirement through USS. In particular, the emails falsely stated that I had signed an ‘alternative consent form’. In reality – as I had truthfully claimed in my email - I had actually only asked for further information on this alternative; and – as revealed by disclosure - it later turned out that the ‘alternative consent form’ was simply the ‘standard medical consent form’ which was needed for USS to approach my GP. The transcripts show as much, and the USS offer, in asking for receipt of the retirement form (ME5), supports this. Indeed I only signed this requisite USS application form six weeks later, after I had been (constructively) dismissed from the OU!
115. Whatever the reasoning, despite Paul Dixon’s clear note of alarm and despite the serious nature of the steps that I had suggested were being taken in terms of these OUBS actions to terminate my employment, to my great surprise the considered email response from OUBS, albeit once more sent by a junior manager (despite the internal communications which suggest that a senior OU/OUBS manager must have authorised it, as at the time I assumed must have been the case), two weeks after the burst of internal communication, did not attempt to rebut them in any way. Indeed, she quite clearly went out of her way to confirm the termination: “I would, however confirm that following your recent consultation with Dr Sorrell the Occupational Health Department contacted USS in accordance with the wishes you expressed at the time. We were subsequently notified by USS in their letter dated 13th November that ill-health retirement had been approved and I believe a copy of their letter was also sent to you. The letter from USS, advised us that your retirement and thus the pension should be put into immediate effect. As we understood that this was in line with your wishes, Maureen contacted you to confirm an appropriate date”.
116. Thus, even if Katie Stocks also stated that ‘a number of other issues’ would be dealt with directly with my solicitors, though this never happened, it was clear that her (and her management’s) key decision – of my, falsely claimed, ‘retirement’ and hence my termination – was final! This was the last straw as far as I was concerned. It had become amply clear that not merely would it be difficult for me to return to the OUBS under conditions which my disabilities would permit, but its management had now actually terminated that employment. Furthermore, this was no mistake, for when challenged by me it had refused to withdraw that dismissal; and offered me no route of appeal. This was the point at which I finally accepted that my (constructive) dismissal from OUBS was indeed final and irrevocable.
117. Even so, I (or at least my solicitors) persisted with the parallel attempts to appeal to OU management by contacting the VC. Regrettably, even she failed to respond within the (7 January 2003) deadline . Even then, a further final (3 February 2003) deadline was set for a response to it and the other issues raised. Lamentably, once more, this final attempt at resolving the position met with a signal failure to issue any formal written response - and accordingly no retraction of the termination was forthcoming from either the OUBS or the OU. It was this failure of the final attempt – to persuade the OU to enter into negotiations, or at least withdraw the termination, after almost two and a half months had elapsed since the original termination letter and a full year had gone by since the problem had erupted - which finally triggered action on my part to write, and formally put on the record, the fact of my (constructive) dismissal before the matter ran out of time.
118. On the other hand, it still is not clear how the final OUBS decision, as conveyed by the email from Katie Stocks, was arrived at. In view of the extensive internal OU debate which had taken place, however, there can be no doubt that this decision – to terminate my employment on the basis that I had retired - must have been taken quite deliberately by senior OU/OUBS management in full knowledge of my denials! Indeed Katie Stocks forcefully stated that this was the final decision on my appeal.
119. She went on to indicate that further communications on other issues, but not on the termination itself, would still be undertaken via my solicitors; though once more this never happened! Surprisingly, in view of the seriousness of the issues and despite various claimed telephone calls to a range of people, neither did their solicitors - Shoosmiths – formally contact me (or my solicitors) in writing; as they had promised a number of times - for a further eight months! In particular, neither they nor OU management made no attempt to withdraw the false claim that I had retired.
120. The result of this (constructive) dismissal was that – having fought the moves to force me out of OUBS for more than a year - I was finally obliged to hand in my formal resignation. Later that day, in order to mitigate my loss (and more important, for me, to obtain a minimal level of income), I handed in my completed (USS form ME5) application for my pension, for which I had previously received an agreed offer but which I had never actually applied for (the position which was confirmed in section 13 of the defendant’s initial rebuttal). My resignation was formally confirmed by the OU ten days later.
121. As the OU rules are so important in this context, since they provide the only framework within which academics’ ‘objectives’ may be discussed, the relevant OU CDSA (Career Development and Staff Appraisal) rules apply.
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