Background
The Modernising the Governance project is the most recent iteration of the University of Southampton’s Senior Management Team’s attempts at governance reform; previous ones ended inconclusively. We were introduced to the current project in July 2021 and Andrew Serdy, Vince O’Connor, Conor McHugh, and Marianne O’Doherty volunteered to work on the project for the branch. We were at the time led to expect that it would conclude in April 2022. However, the project has proved much more complex and time-consuming than initially proposed and negotiations between TUs and the project leads in HR, Employee Relations, and the VP Operations continued until January 2023, when a set of documents that HR considers final was shared with the Trade Unions. Since then, UCU negotiators have carefully gone through the documents to understand the interactions between them in order to enable us to write recommendations for the Branch.
Project scope
The project, which took place in two phases, involved rewriting the core documents that set out the ‘aims, powers and governance framework’ of the University [https://www.southampton.ac.uk/about/governance.page]. UCU refused to agree to the changes under Phase I of the project until we had seen the final documentation for Phase II, because we believed that the two phases were too closely interrelated to separate, and so it proved. The two phases of work involved:
- Rewriting the University’s Royal Charter (Phase I). The University insists that it is not obliged to negotiate on this with Trade Unions. The revised Charter has been shown to Senate, but Senate was not asked for approval. Nevertheless, it was sent to Privy Council in mid-2022; Privy Council postponed approving the changes until they could see the revised Ordinances, but earlier this year approved them on the strength of the drafts of the ordinances as they then stood, unhelpfully cutting short the negotiations on the Charter which from our perspective had not yet run its course.
- Removing all the University’s statutes; this is incorporated in the Charter changes (Phase I). In particular, Statute 7, which covers Academic Staff: Dismissal, Discipline, Grievance Procedures and related matters disappears. The significance of this is that the Statutes are effectively part of the constitution of the University. They can only be changed by Council using a special resolution passed with a three-fourths majority at two Council meetings at least a month apart.
- A rewriting of ordinances which involves elimination of most of the Employment Ordinances and conversion of these into employment procedures (Phase II). The significance of this is that while changes to Ordinances must be signed off by Council, changes to HR procedures can be made by HR following negotiation with UCU, Unison and Unite, but without Council input or signoff.
The changes are broadly similar to those that have recently been pushed through (sometimes acrimoniously) at several other universities.
The project had a number of stated aims that can be read on University web pages [https://www.southampton.ac.uk/blog/ueb-blog/2022/05/04/ueb-blog-3-5-22/; https://sotonac.sharepoint.com/teams/MtG]. As recognised Trade Unions, UCU, Unison, and Unite have participated in the negotiations. The employment procedures in Phase II apply only to level 4+ staff represented by UCU, but these policies influence the processes used for staff on levels 1 to 3. UCU negotiated only on the changes that impact upon our Terms and Conditions of Employment [For instance, while the SMT project sponsors established a Modernising the Governance Project Board, TU reps’ requests for a seat at that table were refused, though we do receive reports of its (infrequent) meetings].
Within this area, the key aim of the project appears to be to remove responsibility from University Council for involvement of employment procedures that can result in the dismissal of members of staff at L4 and above. The removal of employment matters from Statutes and Ordinances (where changes require Council approval) is also intended to make it easier for the University to change these procedures. The University, however, highlights that the project proposal elevates the status of some Academic Freedom protections for staff by enshrining these in the Charter, which can only be changed following signoff by Privy Council.
Below, we highlight the broad implications of the proposed changes under Phase I and Phase II to Charter, Statutes, and Ordinances for our employment protections, before setting out our assessment of each individual revised employment policy.
University of Southampton Documents
The University of Southampton has made available all the documents produced as part of the Modernising the Governance project to University of Southampton staff via a SharePoint site, which can be found here: https://sotonac.sharepoint.com/teams/MtG/SitePages/Key-documents.aspx
There is also a covering letter from Wendy Appleby, the Vice-President (Operations) which you can find here.
Southampton UCU encourages members to review and consider the documents produced by the university.
The Royal Charter
The part of the Royal Charter that pertains most closely to our Terms and Conditions of Employment is the newly written section on Academic Freedom.
This has been brought ‘up’ from its previous position in Statute into the Charter, which must be approved by Privy Council. A feature of the new Charter on which we negotiated extensively is a paragraph intending to protect Academic Freedom:
The Council shall have regard to the need to ensure that employees engaged in teaching or research, or in undertaking other academic activity, shall have freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or any privileges which they may have at the University.
Following our input and discussions in Senate, this clause now protects all academic activity and all staff undertaking such academic activity; our current Statutes and Ordinances were changed in 2008 to restrict such protection to ERE staff only.
However, it is still weak in some ways, using “shall have regard to the need to” rather than the simpler and clearer “shall”. Its text is derived from recent UK legislation, whereas we had proposed retaining the reference to the UNESCO formal Recommendation concerning the Status of Higher-Education Teaching Personnel [https://en.unesco.org/about-us/legal-affairs/recommendation-concerning-status-higher-education-teaching-personnel] that is in the Statutes. This recommendation expressed “concern regarding the vulnerability of the academic community to untoward political pressures which could undermine academic freedom and considered that the right to education, teaching and research can only be fully enjoyed in an atmosphere of academic freedom and autonomy for institutions of higher education and that the open communication of findings, hypotheses and opinions lies at the very heart of higher education and provides the strongest guarantee of the accuracy and objectivity of scholarship and research.”
THE ABOVE REMAINS UNCHANGED
The Statutes
The proposal involves the complete revocation of all the Statutes of the university; this is incorporated in the Charter changes. In particular, Statute 7, which covers Academic Staff: Dismissal, Discipline, Grievance Procedures and related matters disappears.
This is particularly significant for staff engaged in academic activities who may need Academic Freedom protections, because it contained the only reference to the UNESCO Recommendation on Academic Freedom, as noted above:
Where there is any issue as to the meaning of “academic freedom” in any proceedings under Parts II, III, IV, V or VI of this Statute, regard shall be had to Sections VI and VII of the Recommendation concerning the Status of Higher-Education Teaching Personnel adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) in Paris on 11 November 1997.
THE ABOVE REMAINS UNCHANGED
The Employment Ordinance
The SMT’s intention is to eliminate completely part 3 of the Ordinances: those about Dismissal, Discipline, Grievance Procedures and related matters, effectively moving ownership of the policies and procedures contained in these from Council to Human Resources. This includes the high-level guidelines about how the university makes decisions about making academic and academic related staff redundant. These Ordinances are replaced with a single short Employment Ordinance that signposts to a negotiated set of employment procedures and to a set of Overarching Principles. Future changes to the Procedures would have to be negotiated with the recognised trade unions, including UCU.
The Procedures
Phase II of the project involved a set of eight HR policies, along with a set of “Overarching Principles” that provide the framework for their implementation and must be read alongside them. It is these nine documents that management has asked us to approve or reject at this time.
As originally presented to us, they were rather badly written; textual improvements continued up to the final days, and in UCU negotiators’ view are not all completed. Several of the procedures are significantly affected by the University’s desire to end Council involvement in various decisions that result in the termination of employment for staff at L4 and above. Generally, our view is that there is an attempt to push levels of authority for decision-making of this kind too far down the organisational tree. This view is shared by colleagues in Unite, who are concerned that colleagues on relatively low grades are being given disproportionately high levels of responsibility under these procedures.
SOME CHANGES AND CLARIFICATIONS HAVE BEEN MADE TO INDIVIDUAL POLICIES BELOW IN RESPONSE TO CONCERNS. THESE WILL BE HIGHLIGHTED FOR INDIVIDUAL POLICIES.
Nonetheless, the negotiating team feel that a few of these policies could be accepted. The vote in March for further negotiations with the University’s senior leadership and with representatives of Council led to only perfunctory exchanges; in particular the meeting we sought with Council never took place. Problems applying to a number of the documents are:
- Throughout the policies, the obligations on managers are not as direct as we might expect. For example, on equality diversity and inclusion, “the Appropriate Manager should consciously consider EDI principles at every stage and apply them where appropriate” (OP) rather than “the Appropriate Manager must apply EDI principles at every stage”. Similarly, management “may allow you to bring an additional companion” if you have difficulty with English or a disability (OP), but is not obliged to do so.
- In several areas, management has refused to allow colleagues postponements beyond the statutory minimums.
- Following the removal of panels including a lay member of council from these processes, in our view several policies involving dismissal of staff engaged in academic activity no longer incorporate sufficient protections to staff exercising Academic Freedom. While staff facing dismissal on Disciplinary or Managing Performance grounds would have the additional protection of an Academic member of Senate on their Dismissal Panel, this protection is not extended to staff facing Dismissal on Other Grounds (Expiry of FTC or SOSR) or non-confirmation of probation. We note that this does not comply with the spirit of the UNESCO declaration on Academic Freedom referenced above, which states:
45. Tenure or its functional equivalent, where applicable, constitutes one of the major procedural safeguards of academic freedom and against arbitrary decisions. It also encourages individual responsibility and the retention of talented higher-education teaching personnel.
- The principles and procedures (perhaps not surprisingly) cover only university employees and do not extend to UniWorkforce, through which some PGR members are employed. They certainly do not cover outsourced providers such as Cambridge Education Group’s “ONCAMPUS” who are now delivering some of our foundation year courses.
THE FINAL DOCUMENTS SHOW SOME IMPROVED CLARIFICATION OF OBLIGATIONS ON MANAGERS; SOME IMPROVEMENT ON ACADEMIC FREEDOM PROTECTIONS IN SOME CASES. THE SMT ACKNOWLEDGES THAT WE DO NOT CURRENTLY HAVE A POLICY OR AGREEMENT REGARDING OUTSOURCING AND HAVE INVITED US TO TABLE THIS FOR DISCUSSION AT JNC.
D Overarching Principles
These have significantly improved since the first iteration. However, there remain a number of problems. The most serious of these is the definition of ‘Nominee’ in the glossary (f), which allows a Head of School or Professional Service to nominate someone more junior to be the decision-maker in a procedure. Our reading of the current documentation is that through the use of ‘Nominee’, decisions about dismissal of L4 and above staff can in some instances (Dismissal on Other Grounds – Expiry of FTC) be delegated to Head of Department/direct line manager level.
In 11.2 ‘Should’ hold meetings within your work time unless agreed otherwise needs to be ‘will’, to adequately protect part-time staff.
THE UNIVERSITY PROVIDED IMPROVED CLARIFICATION AROUND THE SENIORITY OF NOMINEES, CLARIFYING THAT SENIOR IS DEFINED IN ALL CASES AS “Senior – refers to an individual who is either on a higher Level than you or above you in the organisational chart and holds a more senior managerial role.” THIS DEFINITION ALSO APPLIES WHERE SENIORITY IS REQUIRED OVER PREVIOUS DECISION-MAKERS. THE UNIVERSITY BELIEVES THAT THERE IS NO DETRIMENT TO EMPLOYEES COMPARED TO THE CURRENT SITUATION IN THE NEW ARRANGEMENTS, AS THE ONLY POLICIES WHERE ‘NOMINEE’ MAY COME DOWN TO LINE MANAGER LEVEL ARE NON-CONFIRMATION OF PROBATION AND END OF FIXED-TERM-CONTRACT SITUATIONS. UCU REMAINS OF THE VIEW THAT DISMISSALS SHOULD BE DECIDED AT A HIGHER LEVEL THAN LM IN THESE TWO CASES.
COMMITMENTS TO ABIDE BY EDI PRINCIPLES AND HOLD FORMAL MEETINGS DURING WORK TIME HAVE BEEN STRENGTHENED FROM ‘SHOULD’ TO ‘WILL’ AS PER OUR REQUEST.
E Grievance Procedure
We are concerned that management has not agreed to extend the “right to be accompanied” to the informal stage of a grievance. Colleagues raising a grievance are already highly stressed and they need the support of a companion when raising the issue with their managers; this should be embedded as a right in the procedure.
We are concerned that the word ‘usually’ in timescales (e.g. 6.1) allows undue latitude to managers to delay proceedings unreasonably; delays in handling grievances exceeding six months are regular occurrences to UCU caseworkers. We would like to explore adding additional wording that allows for necessary and reasonable extensions (e.g. in cases of sickness or part time working) but places an upper limit on any delay.
HR IS NOT PREPARED TO EXTEND THE RIGHT TO BE ACCOMPANIED TO THE INFORMAL STAGE AS THERE IS NO STATUTORY REQUIREMENT. THEY INSTEAD PROPOSE TO ADD GUIDANCE ON SITUATIONS WHEN INVOLVING HR AND TU COLLEAGUES IN INFORMAL DISCUSSIONS MAY BE APPROPRIATE, THUS THE FINAL WORDING HAS CHANGED TO: .2 of the Grievance Procedure is as follows – “HR can advise on any agreed early resolution methods. Early resolution methods are voluntary and will only take place if everyone agrees. We may involve Trade Union colleagues in early resolution methods to help resolve your grievance informally. You can find more information on early resolution measures here.”
HR’S VIEW ON TIMESCALES IS THAT AN UPPER LIMIT CANNOT BE MANDATED BECAUSE IN SOME CASES REASONS FOR DELAY ARE OPEN-ENDED. E.G. SICKNESS. THEY POINT OUT THAT S. 10 OF THE OVERARCHING PRINCIPLES REQUIRES ALL PARTIES TO ADHERE TO TIMESCALES AND THE UNIVERSITY TO PROVIDE A REASON AND NOTIFICATION TO THE EMPLOYEE OF ANY NEED TO VARY THESE.
F Disciplinary Procedure
The main change in this procedure is the removal of a panel involving a lay member of University Council to decide on the dismissal of employees at levels 4-7. The revised dismissal panel would instead comprise Head of School or Professional Service plus support from two other managers of sufficient seniority. Following negotiation on Academic Freedom protections, HR inserted a clause allowing a staff member facing dismissal on grounds they believe infringe their Academic Freedom to request that one panel member be an Academic Senate member.
Members will note that the policy contains a rather long “shopping list” of misconducts, which negotiators would have liked to see further reduced; for comparison, see the short “gross misconduct” list on page 52 of the ACAS guide [https://www.acas.org.uk/sites/default/files/2022-04/discipline-and-grievances-at-work-the-acas-guide.pdf]. However, we note that these lists are shorter than those contained in the current policies, and that because the lists are non-exhaustive, the removal of an item from the list does not remove it as a potential reason for misconduct.
NO CHANGE IS TO BE MADE TO THE MISCONDUCT EXAMPLES LIST ON THE GROUNDS THAT WE ARE A COMPLEX ORGANISATION AND THE ACAS LIST DOES NOT COVER THE MOST RECENT CASE LAW.
‘WILL’ WILL REPLACE ‘SHOULD’ IN S. 6.7, TO: “Your Line Manager will carefully consider the suspension arrangements, so they do not impact your ability to make necessary communications, including contacting your trade union and/or your Companion.”
G Dismissal on Other Grounds Procedure
While we are not happy with the notion of Dismissal on other Grounds as it is clearly vague and open to abuse, it nonetheless reflects the “Some Other Substantial Reason” clause in UK legislation. There are some troubling examples in the reasons given for DoOG under 2.1: (d) which refers to “fundamental and irretrievable differences between you and another colleague or colleagues”, and (e), which refers to “breakdown in mutual trust and confidence” with no mechanism to try and sort out the rights and wrongs of the matter. We note, however, that this is a non-exhaustive list, so removal of these examples from the text would not remove them as potential reasons for dismissal.
A fundamental problem with this procedure is that it is currently not covered by the Academic Freedom protection provision available to those undergoing Stage 3 Dismissal under the Managing Performance or Disciplinary procedure. This leaves the procedure open to abuse; negotiators would like the Academic Freedom protections made available to those undergoing this procedure.
As we understand it, the use of ‘nominee’ at 11.4 potentially allows for a L4 or above member of staff to be dismissed by their immediate Line Manager or indeed anybody else more senior than the individual at risk of dismissal. We believe this clause also needs revision.
WILL WILL REPLACE SHOULD, READING: “Your Line Manager will carefully consider the suspension arrangements, so they do not impact your ability to make necessary communications, including contacting your trade union and/or your Companion.”
AS WITH ‘GRIEVANCE’ ABOVE, HR IS NOT PREPARED TO MAKE INVOLVEMENT OF TUS IN INFORMAL/ EARLY RESOLUTION STAGES A RIGHT, BUT IS PREPARED TO PROVIDE GUIDANCE AROUND AREAS WHERE TU INVOLVEMENT IN EARLY RESOLUTION MAY BE APPROPRIATE. POLICY WORDING: “We may involve Trade Union colleagues in early resolution methods to help resolve conduct issues/concerns about your performance informally. You can find more information on early resolution measures here.”
THE LIST OF REASONS FOR DISMISSAL WILL NOT BE AMENDED.
HR HAS AGREED TO EXPAND THE RIGHT TO REQUEST AN ACADEMIC SENATOR FOR CERTAIN APPEALS AGAINST DISMISSAL FOR SOME OTHER SUBSTANTIAL REASON (SOSR) UNDER PART 1 OF DISMISSAL ON OTHER GROUNDSS THIS WOULD APPLY TO APPEALS AGAINST DISMISSAL UNDER SOSR IN EXAMPLES 2.1 (d), (e), and (f), AND HAS AMENDED THE APPEALS PROCEDURE ACCORDINGLY (2.8). THIS RIGHT WILL NOT EXTEND TO APPEALS AGAINST DISMISSALS ON GROUNDS OF AN ILLEGALITY OR BREACH OF STATUTORY DUTY.
H Managing Performance Procedure
We are broadly satisfied with this procedure.
I Probation Procedure
Under the proposed procedure, the probation period is one year for all staff in levels 4–7 except for ERE level 4–6 staff on balanced or teaching pathways whose default probation period is two years. This can be shortened by their manager if they meet their probation targets early. We have not been offered any convincing reasons why the default probation period for ERE staff on balanced or teaching pathways needs to be 2 years, even if PGCAP (or equivalent) has already been completed and/or FHEA is already held. We believe that applying extended probation to staff involved in teaching is an unreasonable detriment and propose that can be simply fixed by inserting a modified version of a clause from the existing policy allowing probation for such staff to be shortened to 1 year at the point of hire if the appointee has passed probation at another HEI or already has PGCAP equivalent or HEA fellowship. We further believe that the same principles should apply at L7 as for L4–L6.
Non-confirmation of probation is not covered by the proposed Academic Freedom protections.
HR ACKNOWLEDGE THE ISSUE WE HAVE RAISED BUT STATE THAT SORTING THIS OUT IS BEYOND THE SCOPE OF THIS PROJECT AS IT HAS RAMIFICATIONS BEYOND EXTENDING THE PROBATION PROCEDURE. HR PROPOSES TO LOOK AT THIS SEPARATELY FOLLOWING THE IMPLEMENTATION OF THESE PROCEDURES IN A SEPARATE PROJECT, WHICH WOULD NEED TO BE AGREED BY HR LEADERSHIP AND TAKEN TO JJNC.
HR DOES NOT PROPOSE TO EXTEND ACADEMIC FREEDOM PROTECTIONS TO NON-CONFIRMATION OF PROBATION.
J Redundancy Procedure
In our view, there are very substantial problems with this policy, and we have made problems with it clear repeatedly throughout negotiations. Our two major concerns are:
- There is still too little proposed engagement from Council when management wish to propose major restructures. Negotiations resulted in the late addition of clause 5.1 (c) which says “Where we are considering the closure of a whole academic discipline or department, UEB must gain endorsement from Council.” Nonetheless, this wording could allow for major detrimental changes without Council oversight, up to and including: the ending of Undergraduate or Postgraduate teaching in a department; the cessation of teaching or research in an entire field; turning balanced departments into teaching only departments.
- The Consultative Forum: we have made it clear since early in the negotiations that we cannot agree to this procedure without further information on the size, shape, membership, remit, meeting frequency etc. of this proposed Forum. This has not been provided. As a result, the current draft is still too vague, in the negotiators’ view, for agreement to be possible at this stage.
WE ASKED FOR FURTHER CLARIFICATION FROM COUNCIL AS TO THE RATIONALE, GIVEN THE NATURE AND VIGOUR OF OUR OBJECTIONS TO REMOVAL OF COUNCIL OVERSIGHT FOR ANY CHANGES SHORT OF CLOSURE OF ENTIRE DEPARTMENTS. IN RESPONSE, THE UNIVERSITY HAS REITERATED COUNCIL’S POSITION THAT THEY SUPPORT THE PROPOSED CHANGED POLICY AS IT NOW STANDS.
HR HAS PROMISED A DRAFT COPY OF THE TERMS OF REFERENCE FOR THE CONSULTATIVE FORUM, BUT UCU HAS NOT YET RECEIVED THIS.
K Managing Sickness Absence and Ill Health Procedure
We are broadly satisfied with this procedure.
L Appeals Procedure
Our main concern with this procedure comes in section 2.8 where our Academic Freedom protections are restricted to only certain employment procedures. In particular, there is no provision for an academic Senate member to join the appeal panel in cases of the catch-all “dismissal on other grounds” or through non-confirmation of employment at probation.
As a more minor point, in section 2.3, we would like to see an undertaking to supply documents at least five working days before the hearing.
HR HAVE CLARIFIED THAT THE 10-DAY NOTICE PERIOD UNDER 2.3 ALSO APPLIES TO COPIES OF ALL RELEVANT DOCUMENTS.
AS DISCUSSED UNDER THE RELEVANT POLICIES ABOVE, HR HAVE NOW EXTENDED ACADEMIC FREEDOM PROTECTIONS FOR CERTAIN CASES OF DISMISSAL ON OTHER GROUNDS (PART 1; SOSR IN EXAMPLES 2.1 D, E, AND F), BUT HAVE NOT DONE SO FOR NON-CONFIRMATION OF EMPLOYMENT AT END OF PROBATION.
HR HAS CONFIRMED THAT IN APPEALS WHERE ACADEMIC FREEDOM IS RAISED UNDER THIS POLICY, THE APPROPRIATE MANAGER, ACADEMIC SENATOR AND OTHER SUPPORTING MANAGER ON THE PANEL WILL NEED TO REACH A JOINT DECISION. THE ACADEMIC SENATOR WILL NEED TO BE INDEPENDENT FROM THE EMPLOYEE.
Our ballot
We are conducting an online ballot on the set of policies. The negotiators view the changes since the last vote was taken as both incomplete and too minor to recommend acceptance, so we are offering the same choice as in the recent UCU nationwide vote on the two disputes: reject or note.
We would be unable to accept the proposals at this time as they remain incomplete; some guidance is still in draft form and we have not yet seen the terms of reference of the “redundancy” forum; a vote to note would indicate broad acceptance and a will to conclude the final details.
If members vote to reject, the SMT may choose to negotiate further, or may try to impose these changes on us without agreement. If they take the latter course, we will ballot again to decide whether we wish to enter a formal local dispute. Such disputes have in the past been resolved through the involvement of the Advisory, Conciliation and Arbitration Service.
The recommendation of our negotiators and branch executive is to reject the proposed changes; we will report the Branch’s decision to management at the Joint-Joint Negotiating Committee meeting on 18th May 2023.
Southampton UCU members are requested to choose between the following options in the consultative ballot:
☐ I vote to reject the proposals
☐ I vote to note the proposals
☐ I abstain
The ballot will close at MIDDAY on Wednesday 17 May 2023.
