Congregation, 31 October 2017 (EJRA Question and Reply)

Report of Procedings

At the meeting of Congregation on 31 October, the question and reply, first published in the Gazette of 19 October, were taken as read. Seven supplementary questions were asked, as set out below.

QUESTION

‘Given that the only two final decisions so far in the University's Appeal Court on EJRA Appeals were published by the Council on 23 June and then in the online Gazette of 29 June, though only in redacted form, with both upholding the appeal and both criticising extremely strongly the unfairness of the conduct of the EJRA process, what steps will Council take to present to Congregation a full Report setting out its proposals to meet the following concerns arising:

a)     In the statement accompanying the 'release of decisions by Dame Janet Smith and Sir Mark Waller in the University's internal Appeal Court' it is asserted that 'anyone who applies to remain in post beyond the retirement age, and is turned down', may appeal. Will Council confirm what avenue of appeal will be available to these appellants under the revised Statute XII.

b)    The statement asserts that apart from these successful appeals 'other appeals, whose details have not been released, have been rejected or resolved in accordance with the University's procedures'. Will Council publish numbers of any EJRA appeals which have actually been rejected on the merits by the Appeal Court and numbers of appeals which have been resolved outside the University's appeal procedures by negotiation or executive action or in some other extra-procedural way?

c)     The statement asserts that the changes of September 2015 were 'brought in to take account of Dame Janet Smith's recommendations' and that 'EJRA application procedures are changed in line with Dame Janet Smith's recommendations. Procedures which are criticised in her ruling of 2014 are no longer in use from 1 October 2015'. Will Council list the exact respects in which the changes made to the procedure in September 2015 were specific, identifiable and comprehensive responses to the Galligan judgement by Dame Janet?

d)    The statement promises that the University 'will consider any comments the Judges have made when deciding on its future policy in this area'. Will Council explain the mechanism to be provided to ensure that the University is able to do this given that Congregation voted to amend Statute XIV, 15 so that in future changes to the EJRA procedure will be framed by the Personnel Committee and approved by Council so will not be Regulations to be published in the Gazette and among the University's Statutes and Regulations but merely 'procedures'.

e)     Will Council explain the basis of its claim that 'participants in the appeal process enter into it with the expectation that it will be confidential' when the Regulations for the Appeal Court state only that hearings shall normally be 'private' but may be public; and make no provision that Decisions of the Appeal Court shall be considered as 'confidential', merely under Statute XII, 57, that they shall be 'sent' to the Vice-Chancellor and the parties to the appeal.

f)     Will Council explain the statement that the Appeal Court 'is asked to consider the merits of those particular cases and not broad legal issues' when this does not appear to be stated in the Statutes and Regulations.

g)    Will Council offer Congregation a full list of lessons to be learned from the extensive criticisms of the conduct of the EJRA process in the two partially published judgements so as to reassure affected employees that they may expect fair treatment if they request to continue in their posts;

and will Council present this Report in the form of a Green Paper to Congregation early in the Michaelmas Term?’

John Ball, Queen’s
Paul Ewart, Worcester

REPLY

‘Council’s responses to the questions raised are as follows:

a) Under the revised Statute XII, approved by Congregation on 31 May 2016, appeals against decisions of the EJRA Committee not to approve an individual’s request to remain in employment beyond the retirement age will be heard by the University Appeal Panel. This is a panel of five drawn by lot from the Pool, which comprises 24 members elected by and from Congregation.

b) One appeal that was brought on the basis that the Appeal Court should consider the lawfulness of the EJRA policy was rejected at a preliminary hearing; no appeals have been rejected following a final hearing; and two appeals have been resolved outside the University’s appeal procedures.

c) The changes to the EJRA in 2015 took into account a number of factors, including Dame Janet Smith’s judgment, confidential and privileged legal advice taken by the University and the experience of those who had operated the procedures. A number of changes were made. Examples of the responses specific to Dame Janet Smith’s judgment include:

a. In response to Dame Janet Smith’s concern that the views of departments and divisions had too much influence over the outcome of individuals’ applications for employment beyond the EJRA, changes were made to the application forms and processes, such that:

i. individuals now submit their own applications, rather than departments managing the application process,

ii. departments are only asked to provide factual comment on aspects of the application and not to ‘support’ it or otherwise,

iii. departments are asked to confirm that informal discussions have taken place and that options other than extended employment have been discussed,

iv. there is no contested case hearing when there is divergence between the views of individuals and departments;

b. The ‘Considerations’ (the type of matters to be taken into account when deciding whether to approve an application for extended employment) were restructured and clarified eg

i. concerns that the link between the Aims and the Considerations were unclear were addressed by the inclusion of an introductory section to the Considerations (para 36 in the EJRA policy). This makes clear thatapplicants holding substantive academic posts are expected in most cases to vacate those posts and to self-fund their new specially-created, fixed-term post, in order that their substantive post can be refilledinsupport of the Aims, particularly those relating to inter-generational fairness, diversity and refreshment;

ii. references to academic distinction were removed to avoid giving the impression that decisions included an element of selection on the basis of performance assessment;

c. The need to avoid performance management was removed as an Aim of the EJRA Policy; and,d. ‘Prospective applications’ ie those made by departments on behalf of newly-appointed staff were removed.

d) No changes have been made to the approvals process for amendments to the EJRA procedures.

The procedures have never been set down in Regulations, although they are available on the University website and have been published several times in the course of consultations over the last six years.

Personnel Committee and Council will continue to consult widely before changes are made to the EJRA policy. The new procedures that incorporate the changes approved by Congregation in May 2017 will be monitored by the Personnel Committee and the next review will take place in 2021.

For the sake of clarity, while the procedures have never been set down in Statute or Regulations, previously the coverage of the EJRA was in Statute (Statute XIV, s.15) and the age was in Regulation (Council Regulations 3 of 2004, regulation 7(1)). As part of the changes introduced on 1 October 2017, approved by Congregation, the age at which the EJRA is set has also been included in Statute XIV.

e) Statute XII, s.57 specifies to whom the Appeal Court’s decision should be supplied; there is no provision for judges to order that they be made more widely available.

Under the Regulations for Appeals to the Appeal Court (Council Regulation 5 of 2006, regulation 5.2), hearings are to be held in private unless the Appeal Court determines otherwise. A reasonable expectation that evidence and information given as part of the hearings will normally be received in confidence therefore arises from the provisions of the Statutes.

This expectation also arises out of the fact that the process is an internal, private employment matter, which would normally be dealt with confidentially.  The expectation is reinforced when participants are informed that the University considers the hearing and all matters connected to it to be confidential.

The expectation of confidentiality enables those who participate and give evidence to do so freely, and protects their privacy and the privacy of anyone referred to in the course of the proceedings. 

f) The Appeal Court is created by the University Statutes and the powers it has are clearly set out.  Unlike a civil court or criminal court it is not created to determine questions of lawfulness, but to act as the final internal appeal stage in respect of certain disputes within the University as specified under the Statutes.  This includes inter alia consideration of whether the University’s policies have been correctly applied.  In relation to appeals under Part H of Statute XII, the power given to the Appeal Court is to “allow or dismiss an appeal in whole or in part”. 

No power is provided in the Statutes for the Appeal Court to consider or determine broad legal issues, including the lawfulness or otherwise of University policies.  The Statutes provide for Congregation, rather than an external judge, to have the power to repeal, amend or add to the Statutes and Regulations.

g) As referred to under c) above, a number of steps have been taken in response to the criticisms by Dame Janet Smith.

The judgment of Sir Mark Waller concerned procedures that are no longer in use; several matters about which he expressed concern were addressed in the procedures that have been in place since 1 October 2015.

These procedures will be further amended as a result of the recommendations of the Review Group, as supported by Congregation. For example,

  • the coverage of the EJRA will be reduced by the removal of the approximately 5,000 staff in grades 6 and 7;
  • the age of the EJRA has been changed;
  • the forms used to apply for extensions will be revised to ensure that they are suitable for the staff groups for whom they are used; and,
  • better guidance and training will be available to managers and staff.

All the comments made by the Appeal Court will be considered by those undertaking the implementation of those changes and will be available to the 2021 review group.

We conclude by commenting that Congregation has considered the EJRA repeatedly over the last 18 months and has decided on each occasion that it wishes to retain it. The Personnel Committee and various Review Groups have reviewed the policy and supporting procedures several times, in light of the growing body of case-law, expert advice, the expanding data-set on the policy’s effects and experience of operating the procedures.

This is an issue that will always engender strong feelings on each side of the debate, but Congregation has decided to retain an EJRA and we are striving continually to improve the way we operate it; it is now surely time to rest the debate until the planned ten-year review in 2021.’

SUPPLEMENTARY QUESTIONS

The following supplementary questions were submitted by Professor Ball and Professor Ewart at the meeting:

Supplementary Question 1

Given that it is stated on the updated Personnel website that “final arrangements are subject to approval by Council on the recommendations of the Personnel Committee later in MT2017”,[1] will Council clarify exactly what is referred to in its reply implying that these have already been approved by Congregation:
the new procedures that incorporate the changes approved by Congregation in May 2017 will be monitored by the Personnel Committee and the next review will take place in 2021.

Supplementary Question 2

Council says that “the judgment of Sir Mark Waller concerned procedures that are no longer in use; several matters about which he expressed concern were addressed in the procedures that have been in place since 1 October 2015”. But he also expressed concerns about those amended procedures and, according to the letters sent to all those affected, these procedures are to be employed in the consideration of applications made by those due to retire in 2019. Will the Council explain why it considers it fair to continue for so long with procedures it admits are only partially amended?

Supplementary Question 3

Given that the Appeal Court was expressly constituted under the North statutes to be compliant with the requirement of the Human Rights Act 1998 that it be an independent tribunal,[2] will the Council explain how the University Appeal Panel meets that requirement as a substitute avenue of recourse for appellants under the EJRA?

Supplementary Question 4

Given that Council has only given examples of “changes made” in response to the concerns expressed by Dame Janet Smith and has not related them specifically to passages in her now published judgement, will it provide a full list with paragraph references to the judgment?

Supplementary Question 5

Council states correctly that “the Statutes provide for Congregation, rather than an external judge, to have the power to repeal, amend or add to the Statutes and Regulations”. However, given that the Council has accepted the decisions of two external judges as constituting preliminary determination of the lawfulness of the University's EJRA procedures then made changes accordingly, and given that Dame Janet Smith held “that the University cannot rely on the EJRA to show that the dismissal is automatically fair” (para. 72), will the Council explain what internal avenue of recourse will now be available to an appellant who wishes to challenge the fundamental lawfulness of the procedure, given that both Dame Janet Smith and Sir Mark Waller held that the Appeal Court had jurisdiction to consider that question?

Supplementary Question 6

In its Reply the Council speaks of “Considerations” defining them as “the type of matters to be taken into account when deciding whether to approve an application for extended employment”. Will Council explain how the “procedures” so far published at any stage in the EJRA comply with the requirements for the application of agreed criteria by systematic and recorded “evaluation” by panel members, as set out in Universities Funding Council ex p. The Institute of Dental Surgery [1993] EWHC Admin 5 (30 July 1993), at:
that the respondent, … recognising, as the respondent does, the need for uniformity and consistency of approach, did not work by agreeing the criteria by which it would judge … so that each panel member might before and after discussion make an evaluation within an agreed range on each criterion.
The form to be completed on behalf of the Division requires an evaluation of the strategic importance of the work. Will Council explain how this evaluation can be made without reference to the “academic distinction” of the applicant's work?

Supplementary Question 7

Given that the Council has not replied to the request that a full Report be presented to Congregation but has merely “commented” that “Congregation has considered the EJRA repeatedly over the last 18 months and has decided on each occasion that it wishes to retain it”, will Council explain how Congregation was able to do this relying on the necessary information it needed to give informed approval, when it had not then had an opportunity to read the Appeal Court judgement of Dame Janet Smith?’

¶ These supplementary questions will be received by Council at its next meeting on 27 November. Council’s reply will be published in the Gazette.