DESTROYED IN COURT
0481 TRIBUNAL - SUMMATION OF LEGAL ARGUMENTS
[This is the document, suitably amended to remove the more obscure legal arguments, I provided to the Tribunal at the end of the hearing]
INTRODUCTION - The evidence you have heard has, I believe, fully demonstrated that my work for the Open University over the past decade or so has been more than satisfactory – if not indeed exemplary - and undoubtedly has not justified the defamations to which I have been subjected and certainly not the Dean’s year-long campaign to force me out. The way I have been treated, indeed, has been – as my witness stated – ‘appalling’. The management of OUBS, especially its Dean, has behaved in an unspeakable manner; indulging in systemic bullying, creating a ‘climate of fear’ as a number of the witnesses have said, and breaking almost every one of the OU’s cherished guidelines on the treatment of its staff, whilst at the same time lowering the exceptional academic standards which the OU has taken decades to put in place. Thus, the moral case is proved beyond any doubt.
This was described by the OU’s counsel as ‘strong management’.
Nevertheless, it is now the legal case which must be made and it is the behaviour of the employer not that of the employee which counts in such cases.
LEGAL ISSUES – These involve two main stages – the precedents for which, as a non-lawyer, I have largely derived from the emplaw.com website:
1)
CONSTRUCTIVE DISMISSAL – the
first requirement is to show a repudiatory breach of contract, where this may be
an actual breach or any anticipatory breach, such as occurred with the OU’s
repeated refusal to withdraw the threat embodied in its claim that I had
retired, or can be one of the last of a series of incidents which justifies
leaving, such as the ongoing pattern of bullying evidenced by the witnesses and
the Dean’s admissions in his email of 11th October 2001. The breach
can be of either an express breach of contract, as was the case with the
argument about my leave entitlement, or of breach of an implied, as it was with
the threat to enforce retirement.
The two other requirements are that the employee must leave in response to the
breach, which my resignation letter shows I did, and that this must not take too
long, hence the urgency of my resignation just less than three months (the
maximum amount set by precedent for those on sick leave) after the first OU
letter about my retirement; the threat which this posed being the ultimate
reason for my resignation.
OU counsel argued that my treatment was so bad that I should have resigned
eight months earlier; and hence my claim was legally out of time!
2) LIFTING THE CAP ON DAMAGES – if I am to receive a level of compensation which goes some way to redress the many, serious wrongs I have suffered, however, I also have to show that the limitation on damages can be removed. In my case there are two grounds for this:
a)
DISCRIMINATION ON THE GROUNDS OF WHISTLEBLOWING – as
was also so clearly demonstrated in the Dean’s email of 11th October
2001.
b) DISCRIMINATION ON THE GROUNDS OF DISABILITY – where, not least as a result of
(2a), the Dean – my ultimate line manager - deliberately refused to make the
reasonable adjustments required for my disability.
ACTUAL OR ANTICIPATORY BREACH
The immediate trigger for my resignation, the ‘straw that broke the camel’s back’, clearly was the threat implicit in the OUBS claim that I had applied for retirement. The appeal court has ‘refused to exclude constructively unfair dismissal’ on the grounds even of ‘…circumstances which might later be construed as unfair pressure…’ concerning early retirement let alone, as here, refusal to withdraw a false claim,
Thus, 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 unfairly threatening to terminate my employment; on the falsely ‘assumed’ basis that I had actually ‘applied for ill health retirement’ as the reason for this claimed retirement. In fact, as the evidence showed, I had just asked for details of the possibilities and the reality was that Dr Sorrell’s notes agreed with my own recollections (and the transcript) by baldly stating that “Requests a case going to USS”, with no mention of any desire on my part to clearly apply for retirement. Indeed, I never signed any application, of any form, and his email to OUBS had merely suggested that he was asking the USS trustees “…about the possibility of retirement on the grounds of ill health”. To this end, therefore, a request was forwarded by him that paperwork be prepared by OUBS for the enquiry (“…application to USS for consideration…”). By the time his letter (which I never saw) was sent, unfortunately it talked ambiguously about an ‘application’ for early retirement, and this ambiguity was never resolved by him – though there is no evidence than anyone in the OU ever actually contacted him to clear up the resulting confusion; even when his notes were obtained. USS subsequently agreed that, subject to my signing the application form, 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 the ambiguity of Dr Sorrell’s internal memo, at no time did I ever accept or agree that this was a formal application for retirement.
Even so, and despite Dr Sorrell’s notes, obtained after much legal argument, showed merely “…requested case be forwarded to USS”, OU counsel still insisted in his summing up that I had actually applied for retirement!
In the first instance I assumed that the OUBS claim that I had retired was an unfortunate error; especially where the VC had by then received a letter from my solicitors clearly continuing the previous negotiations at a higher level. Accordingly, as soon as I had taken advice to make sure my response was legally correct, I responded by email to the OUBS termination letter (with a copy to the VC). My reply 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 threat of 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 becoming, in reality, an impossible situation - it 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.
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, 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 - 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. Indeed I only signed this requisite USS application form six weeks, after I had been (constructively) dismissed from the OU.
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 did not attempt to rebut them in any way. Indeed, Katie Stocks quite clearly went out of her way to confirm the threat of 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”.
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 the key decision by OUBS – of my, falsely claimed, ‘retirement’ and hence the threat of my termination – was final. Even though the first letter, which asked for confirmation, was the point at which constructive dismissal might have taken place, this second letter 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 were actually threatening to terminate that employment despite my clearly expressed wishes that it should not happen. Furthermore, this was no mistake, for when challenged by me OUBS management had refused to withdraw that threat of dismissal; and offered me no route of appeal. This was the point at which I finally accepted that my (constructive) dismissal from OUBS was almost certainly final and irrevocable.
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) was set for a response to it and the other issues raised.
As a result of the signal failure by the OU and its solicitors to simply issue any formal written response and in particular no retraction of the threat of termination after almost two and a half months had elapsed since the original letter threatening termination and a full year had gone by since the problem had erupted - which finally triggered action on my part to write, I felt I had to formally put on the record the fact of my (constructive) dismissal before the matter ran out of time; where the maximum delay allowed would normally be more than three months (and only then where the Applicant was on sick leave, as I was).
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 paragraph 13 of the defendant’s initial rebuttal). My resignation was formally confirmed by the OU ten days later.
Perhaps the most important backing for the facts reported by me, however, is the absence of Respondent witnesses to refute them. In terms of the rather confusing events surrounding the OUBS decision to refuse to withdraw its claim that I had retired, Paul Dixon and Philip Marsh were at the centre of the deliberations, and the latter has reportedly been the OU senior manager in charge of the Tribunal case, yet neither has not been put on the witness stand. Most important of all, the key reports behind this claim supposedly came from Dr Sorrell. In fact, his notes of the key meeting – which were the subject of an order by the Tribunal - merely showed “Requests a case going to USS”. Whatever happened, Dr Sorrell was never present during the key OU meetings where, it seems to me, his report was misinterpreted. The mystery surrounding all of this could have been resolved by the OU putting him on the witness stand – but the OU strenuously opposed this.
CONSTRUCTIVE DISMISSAL - ONE OF THE LAST OF A SERIES OF INCIDENTS WHICH JUSTIFIES LEAVING
As is evidenced by the large volume of documents in this case, there were many different situations where the ‘straws’ built up until the final one resulted in constructive dismissal. The complication is that, despite the Dean’s parallel responsibility for the OU Law School, OUBS management seems to have set out to breach not merely all of the OU’s related guidelines but also a good many of the precepts of employment law; and occasionally criminal law. Thus, in the context of the legal arguments being made in this case, they knowingly indulged in:
Breach of Contract
Breakdown in Trust
Causing Stress by
Excessive Workload
And Bullying
In addition, as will be shown later, they also broke the rules that apply to whistle-blowing and disability.
I)
BREACH OF CONTRACT – OUBS management, in the form of
Roland Kaye, most obviously broke the terms and conditions of my employment in
our meeting of 6 November 2001, when he withdrew my previously agreed
entitlement to outstanding leave, which it was admitted by Roland Kaye in
evidence, was at the time 390 working days and – taking account of the (UCTA
based) dispute over whether leave was added even as it was taken, was in excess
of three years.
The wording of the relevant section of the OU T&Cs was at best ambiguous,
seemingly allowing the VC and/or Secretary to approve exceptions (as the VC
later did), but - as was then the custom – my personal entitlement had in fact
previously been agreed (as oral contracts) by my line managers (with the
knowledge of more senior management, including the Dean himself). As this
accumulated, over a number of years, it was formally recorded as such by OUBS.
Moreover, this banked leave was expressly taken at the behest of OUBS management
(and sometimes was forced on me under duress) - who needed my time to cover
resource shortages in the School – in the full knowledge of the medical problems
this was causing.
Besides, the OU’s witness statements, not least that of the Dean, have clearly
reported that - historically - OUBS academics were as a matter of custom
allowed to accumulate leave in this way and hence, under the Unfair Contract
Terms Act (UCTA), the disparity in application would be unlawful.
In the same context, Paul Dixon of OU Personnel Department – on behalf of the VC
– also made a binding oral commitment, in order to settle my 2002 grievance, to
the effect that I would be allowed to take the 3½ years of study leave owed to
me; and not merely did I confirm this with OUBS (without any objection), but
this agreement was also supported by Prof. Thompson’s report of the agreement.
Paul Dixon went on to say that the VC would be instructing the Dean to this
effect. Indeed, as reported by Roland Kaye in his answer to cross-examination,
this letter took the form of the email from Prof Bassindale (who was delegated
by the VC to handle such matters). As Paul Dixon had advised, to avoid
precedent, even this was not couchjed in terms of three years study leave.
Instead it allowed 12 months of study leave, but in effect added approval for
the idea that the other 2+ years of research – which had been agreed by Prof.
Thompson could be part of normal work; “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”. Whilst he admitted under cross-examination that he was aware
of what this meant, the Dean purposely chose to ignore this, and once again,
this agreement was never implemented by OUBS management – hence introducing yet
another breach of contract. Indeed, the Dean never even made me aware that Prof.
Bassindale had suggested this possibility even when I asked what had happened to
the VC’s response to my grievance. Had I known of this possibility I would have
agreed to a solution based on it.
The principles behind this contractual dispute were, after the best part of a
year, settled in my favour; although, unknown to me, the Dean had already
conceded the basis for this (390 days at that time) internally at the beginning
of 2002. However, in addition to the remaining fundamental disagreement about
the conditions under which the study leave could be taken (which was never
resolved), there was still dispute about the details – such as earning further
leave when on leave. As I showed earlier, this was unfair; in that different
rules to normal were applied. As such, it too was in breach of UCTA.. Also in
breach of UCTA was the application of different standards (objectives) to be met
whilst I was on study leave.
Again it is the absence of the key OU witnesses, especially those from its
Personnel Department – and Alan Bassindale - who could clarify exactly what
happened, and what was supposed to happen, which is especially important.
II)
BREAKDOWN IN TRUST – in view of the progressively
malicious behaviour of OUBS management, over the two years from 2001 to 2002, I
believed that there had been a serious breakdown of trust and confidence, which
has recently been seen as an implied term in employment contacts. The degree of
this breakdown of trust and confidence is definitively shown by the disclosed
documents; most of all by the Dean’s email of 11th October 2001. For
another example, the Dean was in breach of the Employment Relations Act in not
recognising my rights to have a trade union representative or other fellow
worker at any of my conferences/meetings with him and Angus Laing. In
particular, in the very fraught meeting of 6 November 2001 when the final
breakdown in my health occurred, I was not allowed such a representative to be
present even though I asked for one and made it clear that I was actually in the
process of a breakdown. It was also evident, in the form of victimisation, where
certain groups of favoured staff were offered better terms and conditions than
others; not least in the context of the award of salary increments.
As a final insult, OU counsel suggested that I only resigned in order to make
more money; despite the fact that, as I was able to demonstrate, I was replacing
my salary with a pension barely a quarter as much per annum!
III)
CAUSING STRESS – although the legal aspects were
first set by Walker v Northumberland County Council, the damages involved have
since – until very recently (see later) - been limited to pecuniary loss (though
with the cap lifted, where justified by discrimination, for Tribunals). A legal
requirement, is that the stress must, however, have caused a recognised
psychiatric illness, as was reported by Dr Wilson. In the case of Tribunals,
unfair constructive dismissal arising from stress in the workplace must result
from the employer’s actions amounting to a fundamental breach of; which the
evidence shows the OUBS management deliberately engineered.
Although the OU has a formally documented stress management policy, announced in
its guidance notes, these guidelines were flagrantly ignored by OUBS management.
OU counsel argued that the target of three papers insisted on by Anguis
Laing (even on the witness stand) would have been almost trivial; and could not
have caused any stress!
IV)
EXCESSIVE WORKLOAD – the excessive level of the
workload was definitively covered in paragraph 51 of my own statement; and this
was compounded by the failure of OUBS management to even provide a line manager
who might be able to offer a remedy.
V) BULLYING – this is a factor which pervades all aspects of the case. It has been definitively established by my witnesses, who generally report the “climate of fear” which has resulted, and in particular his humiliating criticism of me in front of other staff, and – more generally - was the basis of the grievance recently settled in favour of another member of OUBS academic staff, but it is also evident in the key documents; not least, once more, in the Dean’s email of 11th October 2001 where he publicly threatens to ‘shut me up’ by ‘emptying my pockets’ - which, indeed, he has proceeded to do – even as this case progressed towards the Tribunal itself.
DISCRIMINATION
There are two grounds on which
the ‘cap’ is lifted, and the evidence supporting these also supports the
constructive dismissal arguments above:
2a) WHISTLEBLOWING – despite the
denials by Roland Kaye, the evidence – not least the emails detaining his
conspiracy with Mark Tulitt - shows that his attitude changed dramatically once
he had been handed the copy of my confidential whistle-blowing grievance to the
VC in 1998. The most explicit evidence to this effect is, once more, contained
in his email of 11th October 2001.
There are many other examples of my whistle-blowing which he would have been
aware of, once I had foolishly reminded him, starting with my whistle-blowing to
the FCO in 1990 in order to get the then VC’s veto overturned. The detriment
resulting from my disclosure of the 1998 dossier came most obviously in the form
of denial of promotion, but more damagingly came in the ensuing pattern of
bullying as the ‘climate of fear’ grew.
The most direct evidence of discrimination on the basis of whistle-blowing,
however, comes in the Dean’s email of 11th October 2001. As he
states, in this, my involvement of the AUT and especially the threat of legal
action “…places us all in an impossible position”. This was, indeed, a
perceptive comment, since the climax of that process is this present case.
The explanation for his comment that my behaviour was ‘poisonous’, or – as presented by his counsel – the alternative reason fore his anger, was the result of my whistle-blowing to David Parker which resulted in him not taking up his chair. Although the Dean was mistaken in his view of what happened, in fact I had tried to overcome the overwhelmingly negative reactions of the rest of the School to the meeting by putting the positive aspects of OUBS to David Parker, the Dean clearly thought I had ‘whistle-blown’ in this case as well. Thus, in this key (11 October 2001) email, he demonstrated no less than three whistle-blowing episodes which had influenced him – that from the 1998 dossier, that resulting from my threats of legal action and brining in the AUT (which were the original subject of the series of emails, and that relating to David Parker. The last of these directly threatened his plans to recruit more staff to fill the gaps caused by the ever increasing numbers of staff leaving.
It is not surprising that he then found my behaviour, which clearly threatened his future actions as ‘poisonous’. Indeed, it clearly required a level of fear – amounting almost to an obsession - to subsequently break so many OU guidelines and precepts of employment law in order to shut me up.
However, it is the series of
actions which he then proposed in the email which undoubtedly prove the
deliberate, pre-meditated nature of the discrimination which has taken place –
up to the present day. Thus, amongst a number of threats – which included using
the libellous ‘feedback’ from Mark Tulitt against me a number of times and ‘a
discipline warning’ – he quite specifically says “I am thinking of bringing a
legal action against him for defamation as possibly the only way to shut him up
is to empty his pockets.” Despite the warning scrawled by an advisor on the
note, he went on to try exactly this strategy in the 6th November
meeting where I had my breakdown; and which was arranged by OU Personnel to try
and resolve the problems, but was used by the Dean as a vehicle – as described
in the 11 October email – which was an opportunity for “…management to exercise
its rights to give honest feedback to staff and probably a discipline warning at
the same time”). In this 6 November conference, the advisor’s warning on the
note proved to be correct, for I immediately undermined the defamation
challenge. On the other hand, he moved on to use the same strategy in relation
to my disabilities; by removing the leave entitlement which he knew I was
counting on to recuperate from the problems caused by the excessive workload and
bullying. In this he was immediately successful, as it caused my breakdown.
Having succeeded with this strategy, he then continued to use this device –
along with the others laid out in his plans (in the 11 October email) - for the
next year to try and force me out; until he eventually found the excuse of the
false retirement to achieve this same end. Since then, the OU, has taken over
his tactic of emptying my pockets – this time by vexatious behaviour through the
Tribunal procedures – and it has this time been successful; as the lack of
counsel to represent me graphically demonstrates.
The evidence is very clear that he was determined – almost to the point of
obsession - to stop my whistle-blowing, which by then was causing him
difficulties in forcing though his reduction in academic standards along with
the changes in governance and – he feared in particular – my possible
undermining of his recruitment plans. My continued presence promised to make the
opposition to these changes in policy and the recruitment he needed - even
stronger in future. More directly, he feared that I would use the OUBS
recruitment procedures to warn off new recruits; just as he believed I had done
with David Parker. In this he was mistaken, I would never have damaged the OUBS
in this way, but the fear was just as real to him. Indeed, to quote his own
words again were “…the only way to shut him up…”. The evidence of how he
intended to do this is equally clear, and has been borne out in practice.
Even under the terms of the original 1998 Act, my whistle-blowing would qualify;
as OU counsel admitted. However, the Employment Appeal Tribunal (EAT) has
since held that the expression “legal obligation” in this context can refer to
obligations arising out of a contract of employment as well as statutory
obligations. As such, this provision covers much of the case I have made.
Surprisingly in view of the many other guidelines it has, as far as I am aware
the Open University does not have the written whistle-blowing procedure which it
is suggested it would have been prudent for it to have. Whatever the reason,
again failing – by omission - to make the OU’s case, OU Personnel Department
staff who were involved in the key meetings/communications were not called to
rebut the evidence about these events.
2b) DISABILITY – the second basis for ‘lifting the cap on damages’ revolves
around my disabilities. Thus, the Open University recognises that I am disabled
in terms of my diabetes; and my cardiac condition, which is subject to stress
damage, has also been documented sufficiently to meet any questions they might
have. In terms of my psychiatric condition, although I had referred to the
problem as early as 1993, in terms of a medically recognised illness this
developed through the latter part of 2001, and was acknowledged by a number of
OU staff (including OU Personnel Department and the Dean). The definitive
diagnosis was made by my own GP and the OU Doctor in late 2001; and was formally
described (“Mild Depressive Illness: ICD-10 (F32.10) Secondary to Stress”) as
required by the Disability Discrimination Act (1995) the following year. Dr
Sorrell’s medical notes – which also detail the impact the illness was having on
my life - show that this position was largely unchanged over most of the year
following my breakdown and, more than two years later, I am still having to take
the anti-depressive drug Efexor; and have not been able to undertake any work or
even writing for my own pleasure.
In terms of discrimination arising directly from the disability, Roland Kaye,
yet again in his email of 11th October 2001, specifically states “…be
aware that I am angry with David. I find his behaviour…questionable as to mental
state”; before putting forward range of actions he intended to take to deal with
this. The direct relevance of this was made clear by his claim whilst on the
witness stand that he well understood such psychiatric conditions since his
brother was a leading consulting psychiatrist at the University of Manchester.
Indeed, combined with the other similar evidence, it seems that the Dean took
actions against me, including covert disciplinary actions, because he
(incorrectly) feared what damages my mental state might cause him.
However, the much more prevalent breach of the Act by OUBS management came in
the context of the requirement for employers to make reasonable adjustments to
working conditions and environment to help overcome the practical effects of
disability (legal page 22).
Thus, even when Dr Sorrell, in 2000 (bundle pages 293-294), warned that there could be problems – as a result of my disabilities – if “…the pressures or stresses become out of control…”, and despite Roland Kaye’s expert knowledge of psychiatric conditions, OUBS management took no actions to alleviate such pressures or stresses; and indeed added to them by ignoring the dramatically increased workload and actually raising the level of bullying. After my breakdown, Dr Sorrell (and later the OU consultant) made a number of eloquent pleas for actions to ameliorate the OUBS pressures which were contributing to the continuation of my condition – but these were once more persistently ignored. Indeed, in line with the plans announced in his email of 11th October 2001 (bundle pages 502-503), the Dean actually increased the pressure to breaking point. The stresses applied in the various conferences, and by the emails between these, came to a head with the imposition of the then unusual – and especially stressful - conditions to be applied to my study leave. Indeed, throughout the time from Dr Sorrell’s first recommendations until today, the evidence clearly shows that OUBS management has not made a single move to reduce the pressures on me; but has ruthlessly ratcheted them up to levels that have exacerbated my various disabilities.
Despite my agreement, the Respondent’s representatives failed to obtain further medical evidence to rebut my charges; and again didn’t even produce Dr Sorrell, even going as far as to oppose my request that he be called as a witness, to explain their failure to take even the simplest actions to allow for my disabilities.
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