May 09, 2011

MR ROBERT McKIE (Claimant) and SWINDON COLLEGE (Defendant)

...The claimant was born in May 1953 so he is now nearly 58 years of age. His basic specialism is as an art historian. In the 1980s and early 1990s he taught at various educational institutions in Norwich. In 1994 he applied for a job with the defendant, Swindon College. The title of the job was "Contextual Studies Co ordinator". In January 1995, he was appointed to this position. In the years that followed, he was promoted with in the institution and received bonus awards. As is often the way, as he progressed, his work became more managerial and perhaps less classroom focused.

In November 2002, he left the defendants for a job as "programme leader" at Bath City College. On leaving Swindon and in connection with getting the job at Bath City College, he received an excellent reference from the defendants. This reference is set out at page 1 of divider G. It is not, I think, necessary to read all of it. Let me simply read from the middle paragraph (the third paragraph on page 1):

"Rob has continued to show strong leadership skills in his management of the curriculum area. He has also planned the curriculum well, built an effective team and employed resources efficiently. This area had been performing poorly in terms of meeting Key Performance Indicators, Rob has skilfully brought the area a lot closer to those indicators to such an extent that it is now one of the best performing areas. The staff have a high degree of respect for him. This is particularly noteworthy because, his background is not business, leisure and tourism and when he took .... over morale was quite low."

The next paragraph may be of some significance as well:

"[He] has a positive personality. He is not afraid to challenge but in a constructive way. As a senior manager I value this side of [his] character highly. We need challenging constructive managers to get the feedback and ideas we need to move forward as a college. Just as importantly, if Rob has questioned a decision or a direction in which we are moving and the final decision is not what he would agree with, he will take it forward positively with his staff. [He] can be trusted to manage independently but is not afraid to come and ask when he may need further guidance."

...On 5 June 2008, some two or three weeks therefore after he had started work at the University of Bath, an email was sent from Swindon College to the University. It is set out at various places in the bundle but for reference, I will simply refer to divider G at page 28. It is sent from Robert Rowe, Human Resources Manager at Swindon to his equivalent at the University of Bath. It reads as follows (the recipient being Mr Robert Eales):

"Further to our telephone conversation I can confirm to you that we would be unable to accept Rob McKie on our premises or delivering to our students. The reason for this is that we had very real safeguarding concerns for our students and there were serious staff relationship problems during his employment at this College. No formal action was taken against Mr McKie because he had left our employment before this was instigated. understand that similar issues arose at the City of Bath College."

That, as I say, emanates and signed by Robert Rowe, Director of Human Resources, Swindon College.

The evidence that the claimant has produced in respect of his time at Swindon College and to which I have already adverted, would suggest that the contents of that email were largely fallacious and untrue. In spite of that in these proceedings, heard over the last two or three days, the defendants seek to justify its context...

...In summary, the evidence of Mr Hunt in no ways justifies the contents of the email that was sent.

I did not find Dr Lombard to be a particularly helpful witness. He is a chartered psychologist. He tells that he made a report specifically referable to the claimant at the time the claimant was working at Swindon, the inference being that there were sufficient concerns about the claimant, either his teaching methods or his manner of dealing with students that would justify a chartered psychologist looking at the matter and reporting on it. According to him, as I say, he made a report. Sadly, it would seem, that report is now lost. He does not have a copy of it. The defendants do not have a copy of it in the claimant's personnel file. No-one else at Swindon seems to have been aware of it and, I have to say, I find the idea that there was any sort of formal report, critical of the claimant circulating or submitted at a time prior to his leaving Swindon College to be completely and utterly unproven...

Finally, it may be said that is all true, or may be true, but what about causation? The bottom line, say the defendants is this. Bath University sacked the claimant because they, Swindon, would not permit him to enter and that has a superficial attraction. But it totally ignores, in my view, the fact that you cannot simply isolate one sentence in the email from those sentences which surround it. It would be ridiculous, in my view, to say that Bath simply acted on the basis of that line that says he cannot work at Swindon and totally ignore the fact that safeguarding issues were thrown up and, in the climate in which we live now, that is a word of considerable power and the disciplinary action might have been taken against him.

There is simply no way of ignoring the fact that Swindon gave reasons purporting to justify their decision and, as I have indicated, those reasons do not stand up to any sort of scrutiny at all. In other words it is the totality of the email, not just the single line about banning him from the premises, which was the cause of the University of Bath sacking him.

In my view, therefore, applying the Caparo test, mindful that there is no direct authority specifically in point, accepting that this is a slightly different factual situation from Spring, an obviously different factual situation from White , nevertheless I am satisfied damage was foreseeable, the relationship was sufficiently proximate, it is fair, just and reasonable and there is a causal connection between the negligence in and about the sending of the email and the damage whereof the claimant complains.

I therefore find for the claimant on the question of liability.


Dr Butt became an OBE in the New Year's Honour's List. Robert Eales is Director of HR Operations at University of Cardiff, Robert Rowe continues as Director of HR at Swindon College, Bill Hunt is now Head of Higher Education at Oxford and Cherwell College and Dr Lombard's company, TIPS continues to provide psychology services to colleges in Wiltshire. The claimant is curently unemployed.

Congratulations Swindon College!


Anonymous said...

I am very worried by this case. I have worked at Bath and Swindon College, where Dr Butts is (or was) a govenor and Robert Rowe remains Director of HR. The fact that unsupported rumour could lead to an otherwise explempary academic career being ruined in what Justice Denyer castigated as a "slap-dash" manner remains a real threat as long as such make-weights hold power and their "might makes right".

It is out of the question for any of us to start a "Rowe Must Go" campaign. An iron gate would shut between us and management and it would amount to professional suicide. We already live in a climate of fear and cuts...more so now that the College will have to pay compensation for his incompetence.

An example of how he has affected us follows. When I joined Swindon College some years ago a collegue warned me out of the blue not to expect much from the HR Dept, and that advice has come to seem the prevailing feeling in the college ever since.

E.G. 'Focus' groups have been introduced by H.R. to solicit the opinions of teenaged students on how their lecturers are performing. Some of the latter may well hold petulant grudges after being told to turn off their mobile phones or Facebook and get to work, or at having been reprimanded for not completing projects on time, being late, etc. But this never comes into the equation as their comments are used to urgently confront staff with "concerns" as though these were "facts". With no objective assessment, staff are read the complaints and offered the chance to comment without having terms defined as in reasonable discourse. The assumption is that they should not need to defend themselves, as such trivial discord should never occur in a classroom. I was told recently, "You have to ask yourself, What would their parents say?" Well, most sentient parents know that their offspring may well say disparaging things about their tutors out of pique or simply because they can. Just as I can here, without the benefit of cross-questioning. However, these comments will not go onto Mr Rowe or Dr Butts's official record.

It follows that to some this "proceedure" may recall the MacCarthy trials as one is never told who said what in whatever context. The assumption is that staff are culpable if not actually guilty. Justification is that this system is beneficial to all concerned as "its good to talk", but it is actually dangerously absurd and demoralising to staff as the there is no question of an open forum. We are tainted by "loud whispers", and these - considering the slap-dash standards criticised by Justice Denyer - may well be used against us in the future by Mr Rowe and his minions.

As Voltaire said "Those who believe absurdities are likely to commit atrocities", and this is what one fears from Mr Rowe, who has a very unclear and emotive view of 'Safegurding", employng as he does, an ex-social worker who has passionately stated to us in our compulsory training sessions that all press reports of social workers mishandling of clients are myths produced by journalistic hacks! Is this the standard one expects from educationalists?

As for Dr Butts, her handling of the aspects of Bath's Centers of Lifelong Learning led to their being closed before others in the country with very similar demographics. Her committment was undeniable, but passion was no substitute for what was actually needed - vision and management skills. At least she has been "kicked upstairs" , or has she?

Anonymous said...

Honestly, the way things have progressed, it feels like there's really little alternative to taking matters into one's own hands and forcing these powerful people to go by whatever means necessary.