DESTROYED IN COURT

0464 TRIBUNAL - CONTRACTUAL (STUDY LEAVE) DISPUTE

[The part of my submission which looks at the OU’s refusal – or at least Roland Kaye’s refusal - to give me my study leave entitlement]

Having identified my need for leave to recuperate as my main weakness, the main issue Roland Kaye focused on next was a significant attempt to deprive me of my due benefits in the form of leave entitlement; even though the agreed baseline for this had been set by my long-standing agreement with my line manager and was formally recorded in OUBS files as such. These formally agreed figures had never been disputed before the 6 November 2001 conference with Roland Kaye; even though I had formally told him of my plans for this leave a year earlier, and had discussed these plans with him only a few days earlier at Andrew Thomson’s leaving dinner. Accordingly, at the time, this challenge (though, in retrospect, clearly premeditated by him) came as a complete surprise – indeed a severe shock - to me; and, because this leave was essential for my planned convalescence from the very high workload, was the immediate cause of my breakdown. Later, the report coming out of the grievance procedure also formally recommended that I be given my full three and a half years backlog of leave; but once more, unwilling to abandon the leverage offered by my weakness, OUBS management refused to implement this. When the disagreements about the principles involved were finally refined down to just detailed interpretation of the OU’s T&Cs, however, OUBS management then shifted their objections to imposition of unworkable, and unlawful (in terms of OU T&Cs) targets.

86. As the OU works all the year round, and does not have the normal university terms and vacations, the equivalent of ‘vacations’ at the OU – when academics are free to do their most productive research – comes in the form of an extra two months of (study) leave each year. In theory, academics are supposed to take this leave annually; but provision is made for them to bank up to 12 months of this by simple agreement with their Dean. This was originally intended to allow academics to build up time for their major projects. In reality this is a concession now used by the OU itself – and especially the OUBS – to force academics to work longer on courses when (too frequently) there is a shortfall in the numbers of staff needed to produce the new courses. As it was a new faculty, the OUBS had especially relied on such ‘banking’ to cover the shortfall while its MBA courses were produced. It then became a regular feature for those academics – such as myself – who were the most productive in the School; and hence were most in demand for ‘firefighting’. This became something of a tradition, and most of the senior academics ran large banks of study leave throughout the 1990s. As the ‘labour’ shortage was worst in the consistently under-staffed Marketing Group, I was under constant pressure to agree to bank my leave in this way. Indeed, I eventually also had to bank my ordinary leave; and the last full holiday I took was in 1995.

87. There had been some argument about my study leave records in 1996, following this month long holiday, but this had been resolved with the then management and the agreed baseline for my later case was ultimately set by my long-standing agreement with my line manager (Alan Lawton), documented at the end of 2000 by Alan Lawton's secretary in a series of emails. This agreement made full allowance for all the leave I had previously been forced by OUBS management (including my Centre Head and the Dean) to relinquish in order to meet the urgent demands of OUBS. [Although Alan Lawton was called to be available to give witness, and possibly to try and rebut these claims, he was another who was not in the end put on the witness stand by the OU]. Using the normal process for calculating such leave, and crucially following the accepted rule that study leave was to be earned even while on study leave, in 2001 I calculated that by the time B851 was delivered (at the end of that year) I would be entitled to a total of three and a half years of leave; which was to be used by me to set up my major new research project into ‘Future Economics’. Indeed, I had already drafted a research proposal on this basis and recruited a team of academics to work with me. It was this prospect which kept me going when I had to work seven days a week through 2001; and it was the removal of this which – immediately – caused my breakdown.

88. For whatever reason, however, Prof Bassindale – who was the key decision-maker within the OU on such matters – later reported that, despite their importance, these well documented formal records had not been made available to him by OUBS; even though they were still held by OUBS, were produced later in the disclosure process, and would have been essential when he was considering my claim.

89. Confirmed with my line manager as late as July 2001, and even reconfirmed at the end of 2001, these formally agreed figures had never been disputed before the 6 November 2001 conference with Roland Kaye; despite his acceptance of this leave entitlement made in previous communications. Accordingly, at the time, this challenge came as a complete surprise – indeed severe shock - to me; and, because this leave was not just required for my major new research project but was now essential for my planned convalescence from the very high workload, this was the immediate cause of my breakdown.

90. The contractual dispute which had emerged from the meeting with the Dean had initially been subsumed within the grievance procedure. Following the formal rejection by the Dean, this grievance was put before the Vice Chancellor. The key content of the subsequent letter from her, after the negotiation of suitable terms for an agreement, was the comment that she would be writing to the Dean, encouraging him to provide appropriate support, time and facilities. This should be taken in combination with the preceding phone call from Paul; Dixon in Personnel, who had stated that this was to be seen as a coded reference to my being given my full leave entitlement. This intent was also evidenced by the report prepared by Prof. Thompson for the VC, which - under the terms of the OU grievance procedures - was the outcome of a formally recognized negotiation (intended to lead to an agreement rather than just an investigation). His report also had formally recommended that I be given my full three and a half years backlog of leave.

63. Thus, in order to mitigate the damage to the OU, I did at the time suggest that – in the light of the Dean’s previous refusal to allow me to take the agreed leave which was essential for my health - I would settle for the restitution of my right to spend the next three and a half years on leave working on fully supported research. This was, therefore, the agreement we came to; as was ‘recommended’ in Prof. Thomson’s report. As I was eager to get on with my new research, I was happy to accept this. Unfortunately, despite this verbal contract, OUBS management chose never to deliver what had been promised.

91. Accepting this at face value, as a legally binding contract, I reported this to OUBS; including the aspects which had been reported to me verbally by Personnel (Paul Dixon), pointing out – especially - that the third paragraph of the VC's letter should be construed as being that she had fully supported my leave entitlement. In any case, she had, as reported again by Personnel, written more specifically about this to the Dean saying that this should be granted; though no such document has been disclosed by the OU. This was the basis, though, on which - in a spirit of conciliation and still trusting OU management without reservation - I accepted her judgment without appeal.

92. The OUBS subsequent refusal to even implement this VC initiated ‘settlement’ to the grievance, which authorized my full leave entitlement, once more came as a severe shock at a critical time. Consequently, a further – much delayed - conference, this time by telephone, was set up for 23 May 2002 to specifically address this issue. Regrettably, the validity of my leave claims was not conceded, and even then only in principle, by OUBS management until the second half of 2002; after nearly a year of intense argument had taken place. Understandably, my health, which had been slowly improving, lapsed again.

What emerged during the Tribunal was that the ‘letter’ sent to the Dean by the VC actually comprised – unknown to me – two parts. The first was a copy of Prof. Thompsons report and the second – delivered on her behalf by Prof. Bassindale - was the email which in effect authorized a full settlement:

The key sentences in this email were “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”. As admitted by the Dean during the Tribunal this meant that, without setting any unfortunate precedents, the Dean should offer me the maximum 14 months of leave and then follow it with two years of ‘ordinary work’ in research rather than teaching. In addition to being acceptable to the OU, this would have given me exactly what I needed; and I would have accepted it immediately. Regrettably, the Dean chose not to pass on this offer, because – as he explained at the Tribunal – no matter what the VC thought he didn’t feel I deserved it!

93. Indeed, the OUBS (willfully misquoting the terms authorized in Prof. Bassindale’s email) had earlier made an initial offer of just 14 months. Needless to say, having taken legal advice, I rejected this offer, explaining the detailed reasons for this. Following email exchanges, the contractual position was then further addressed in a – much delayed - conference, this time by telephone. The key aspect of this conference was that the previous disagreements about the principles involved in calculating the length of my leave entitlement were then finally refined down to just detailed interpretation of the OU’s T&Cs (including, in particular, such detailed elements as accumulation of study leave during sick leave). Once more this was initially reported – on the same day - by Katie Stocks, followed by my responses – on the same day. In any case, I later learned that – from the disclosure process - even then Personnel were dubious about the legal validity claimed by the OUBS for some of these details.

94. Unfortunately, in all these exchanges – though I thought I had been told what it contained - I was never actually allowed to see the confidential memo from Alan Bassindale on which the OUBS approach was supposedly based. Disclosure has now shown that this was much more flexible (even though it was clear that OUBS management had withheld my official leave records from him). In addition the official OUBS study leave records which also emerged from the disclosure process have shown that a number of other OUBS academics have had outstanding balances which have also breached the ‘maximum’ levels; and two had even exceeded 450 days. Indeed, had it been made available to me at that time, Alan Bassindale’s  email would have reinforced my trust in the OU in general and even provided what I probably would have seen to be a reasonable basis for a settlement; [especially when it was put in the context of being the method by which the VC intended to honour our settlement!] Regrettably, for whatever reason, OUBS management chose to [ignore the VC’s wishes and to] be very selective in their reports to me of this memo; and simply told me that it had limited the offer to the 14 months which would have been available to any member of OU academic staff! Indeed, in the subsequent telephone conference, while Roland Kaye read me the whole of his email to Prof Bassindale, the latter’s full reply was not even then conveyed to me and, in retrospect, he clearly was dissembling when he said “What Alan wrote back was what I wrote you in my email. To say, you know, to approve the fourteen months of study leave.”!

95. Over the next few months, as part of the extended negotiations, OUBS management gradually released the other elements which had been offered in Prof . Bassindale’s original memo. But, at each stage, this was too little too late (and always - by design - with some additions which would make the current offer clearly unacceptable to me).

96. Attempting to resolve this impasse, I appointed Pictons as my solicitors. Accordingly, on 22 November 2002, they wrote to the OU’s Vice Chancellor, Brenda Gourley, summarising the stalemated position as it then appeared and asking her to intervene; and in particular - without prejudice – offering a settlement of the OU’s breach of contract.

 [back]     [home]

hits