Interception and Monitoring of Communications in FE and HE

From: JISC Legal Information Service, 4 April 2006, by Betty Willder

'...Interception and monitoring legislation is a potentially contentious area for colleges and universities. It is important to strike a balance between the need on occasions to intercept or monitor communications (e.g. by the police for the prevention or detection of crime, or by the college or university itself for operational purposes) and the privacy and freedom of expression rights of the individual whose communications may be intercepted.

New laws were therefore introduced to take account of advances in technology and to attempt to address the interests of both camps.

...It is important to emphasise at the outset that any interception should be regarded as exceptional by nature and must always be done on a clear legal base. Any action taken should always be directed to a statutory provision and must be proportionate to that purpose.

...The Regulation of Investigatory Powers Act 2000 ('the RIPA') rovides that to intentionally and without lawful authority intercept a communication on a private system (e.g. the JANET connection) in the course of its transmission, unless it is done or authorised by someone with the right of control e.g. the Principal or his IT manager acting on his authority, is a criminal offence.

It should also be noted that whilst it may not be a criminal offence for someone with the right of control or authorised, to intercept on a private system, there may be grounds for a civil action for damages if there is no lawful authority to intercept...

Lawful Authority to Intercept

• Lawful authority is required to intercept.
• If there is no lawful authority then consent of the sender and receiver of the communication is needed.
• The RIPA allows some limited interception by the controller of the system without the consent of the sender or the recipient.
• The RIPA sets out the conditions under which third parties such as the police may intercept.
• The Lawful Business Regulations are the main source of lawful authority for the controller of the system to intercept and monitor. They permit the monitoring or keeping a record of communications to for purposes such as standards, national security, prevention and detection of crime, investigating unauthorized use, and ensuring effective system operation.
• The interception must also be relevant to the business of the system controller.
• Every effort must have been made to tell users that interception may take place.
• A communication which has been intercepted and contains personal data is subject to the Data Protection Act 1998.

Possible examples of permitted interceptions

• To check the content of e-mail to ensure that the institutions standards and quality control is not being breached or that third party standards are being followed e.g. the JANET Acceptable Use Policy.

• To check that the system is being used for legitimate purposes only.

• Under a valid warrant obtained by a specified authority e.g. the police or customs and excise etc.

• Some measure of interception is likely to be essential to for example, check or prevent a virus spreading through the system, or to eliminate spam.

• Routine interception for operational purposes such as backing up or forwarding to the correct address.

• Monitoring (but not recording) may also be permissible to ascertain whether a communication is business or personal. An institution may need to check e-mails or voice mail for example in the prolonged absence of staff in accordance with an agreed institutional procedure.

• Where a college operates a confidential helpline service, (for example a collaboration between the institution and the students union), monitoring (but not recording) of calls to support or protect the staff.

None of these examples should be taken as providing unlimited interception powers to colleges and universities and heed should always be paid to the purpose of the interception and the legal basis on which it is done. Staff and students should be clear as to the level of monitoring which may take place.

Essentials for colleges and universities

Colleges and Universities as a minimum should have the following in place. An email and internet policy which:

• Lets the user know what level of interception is likely to take place
• states the do's and don'ts for the user including whether personal use is permitted
• states the level of privacy the user can expect including whether 'cookies ' or other information gathering devices are in use
• lets the user know the penalties for breach of the policy
• is linked with employment contracts, grievance and disciplinary procedures, and acceptable use policies
• has been cross checked with student and staff handbooks, departmental guidelines etc to ensure consistency
• forms part of induction training
• is visible to all e.g. consider notices at log in, on walls in computer suites, and regular on screen reminder notices to ensure ongoing visibility of the policy
• is reviewed on a regular basis...
  

Having these policies and procedures in place will aid in compliance with the law but cannot guarantee complete protection in what is recognised as a difficult area of the law which in many respects has still to be interpreted by the courts.'
------------------------------

The above does not allow for much flexibility and since electronic communications are relatively new, as the author states it 'is a difficult area of law which in many respects has still to be interpreted by courts'.

Most universities are likely to have in place an Acceptable Use Policy, along the lines of:

The University seeks to promote and facilitate the proper and extensive use of Information Technology in the interests of learning and research. Whilst the tradition of academic freedom will be fully respected, this also requires responsible and legal use of the technologies and facilities made available to students and staff of the University... The University fully reserves the right to monitor e-mail, telephone and any other electronically-mediated communications...

And this is where the grey area appears, i.e. academic freedom will be fully respected BUT the university reserves the right to monitor... and if needed - or if convinient - apply disciplinary penalties. The end result is some daring individuals testing the system, or self-censorship.

A report released by the Foundation for Individual Rights in Education (FIRE) reveals that burdensome restrictions on speech are commonplace at America’s colleges and universities. The report, entitled Spotlight on Speech Codes 2006: The State of Free Speech on Our Nation’s Campuses, surveyed more than 330 schools and found that an overwhelming majority of them explicitly prohibit speech that, outside the borders of campus, is protected by the First Amendment to the U.S. Constitution.

And here is a daring academic that challenged the system... The true story of the world precedent legal ruling on email privacy.

A different case of corruption in academia...

We received the following email:

'This is a different case of corruption in academia, but can you please publicise it. A superviser stole her student's work and damaged his life http://ca.geocities.com/uoftfraud/'

We publicise the above with pleasure and without any reservations.

Our only comment is that it is not unusual for supervisors to claim work which is not theirs but belongs to students, AND it is also possible for universities to ignore IPR issues and to use staff work to solicit funding for projects without resolving IPR issues with the staff member who pursued the original research.

Indeed, this is one more category of corruption in academia. If the student or the staff member claim their rights, then they pay the price, i.e. victimisation, exclusion, bullying, etc.

Academics For Academic Freedom - AFAF

Academic freedom - the responsibility to speak your mind and challenge conventional wisdom - defines the university and stands as a model for open debate in wider society.

In today’s political climate it is harder than ever for academics to defend open debate.

Restrictive legislation, and the bureaucratic rules and regulations of government quangos and of universities themselves, have undermined academic freedom.

Many academics are fearful of upsetting managers and politicians by expressing controversial opinions. Afraid to challenge mainstream thought, many pursue self-censorship.

Academics for Academic Freedom (AFAF) is a campaign for all lecturers and researchers who want to make a public statement in favour of unimpeded enquiry and expression. That statement is set out below. Everyone should sign it using the on-line form.

Statement of Academic Freedom

'We, the undersigned, believe the following two principles to be the foundation of academic freedom:

(1) that academics, both inside and outside the classroom, have unrestricted liberty to question and test received wisdom and to put forward controversial and unpopular opinions, whether or not these are deemed offensive, and

(2) that academic institutions have no right to curb the exercise of this freedom by members of their staff, or to use it as grounds for disciplinary action or dismissal.'

From: http://www.afaf.org.uk/ [You can also sign the above statement online]

UCU discovers workplace bullying through NUS...

From: The National Union of Students (NUS)

Bullying ‘overlooked’ in further and higher education, says NUS

Today (21 November 2006) NUS will launch a survey to discover the extent of bullying in further and higher education, saying that the lack of data on bullying is a “badge of shame” for the sector.

The survey will be launched during Anti Bullying Week, at NUS’ ‘Beat Bullying’ day on 21st November. The event will discuss the nature and extent of bullying for staff and students throughout post school education and will hear from prominent figures in the sector such as Roger Kline, Head of Equality and Employment Rights at the University and College Union (UCU)

Ama Uzowuru, NUS National Executive Member, said:

“We need to urgently address the issue of bullying by anyone of anyone in HE and FE, it has been overlooked for far too long. Bullying doesn’t start and stop in school. Whether it is in the workplace, in schools or in further and higher education, people of all ages and backgrounds are bullied.

NUS take bullying extremely seriously. Staff and students up and down the country are suffering in silence and in extreme cases are leaving jobs or dropping out of university because they just can’t cope anymore.”

Louise Sweeney, NUS National Executive Member, said:

“The fact that we have no idea how widespread the problem is, is a badge of shame for the sector and needs to be addressed.

We are seeking to firmly place bullying on the agenda. We hope that the result of this survey will catapult the further and higher education sectors into action over a topic that has been swept under the carpet for too long.”

Roger Kline, UCU Head of Equality and Employment Rights, said:

"Bullying in any context is not acceptable. In a learning environment it can damage students' life chances. UCU has campaigned vigorously against bullying of lecturers, researchers and related staff, which is on the increase, as market forces impact on education. Bullied lecturers cannot do their best for students. Bullied students cannot give their best academically. We look forward to working with NUS on this important campaign where we have such common interest."

--------------------------------

Mr. Kline we are happy that you have at last discovered workplace bullying as the Head of Equality and Employment Rights in UCU. We are also happy that you acknowledge that 'bullied lecturers cannot do their best for students'. Is there anything else you want to tell the many members who the union has let down in terms of its lack of support on workplace bullying, or are you simply happy to provide only some rhetoric that goes down well with NUS?

Your [academic] staff appraisal...

Academic Freedom of Expression

Erik Ringmar is Professor at the National Chiao Tung University, Hsinchu, Taiwan... Between 1995 and 2006 he taught in the Government Department at the London School of Economics.

'...This is the story of how [a]... blog suddenly became national news in Britain during the spring of 2006. It is also the story of freedom of speech and hypocrisy at a world-famous institution of higher learning...

On March 22, 2006, I gave a speech at the the Open Day events organised for prospective LSE students and their parents. Thinking about what to say in the morning, I panicked. As a foreigner, I don’t know anything about the English school system. In fact I don’t even know much about the LSE undergraduate programme. Yes, I have been at the LSE for some ten years, but I never bothered to learn anything about the various options, the requirements, the rules and the regulations.

Emailing George Philip, convenor of my department, I was told to rely on the official information they had provided. I was to be the “face” of the department and a “reassuring academic presence.” All that is needed, Philip told me “is someone who knows how to operate Powerpoint.”

This was bad news. What the event required was obviously someone with a sales pitch. Someone who could tell the official story of the School and the department the way it should be told, and convince prospective students to choose the LSE over any of its rivals. In a world where tuition fees are brining in 3000 pounds per student, academics are forced to become salesmen with Powerpoint presentations. How else, after all, can our salaries get paid?

In the end, I decided to give the speech, but to do it my way: to speak as truthfully as possible about what it is like to be an undergraduate student at an elite institution. The LSE is a great institution, surely it should be able to use the truth as a recruiting tool.

The speech in its entirety is available here: It is basically a short catalog of the good and bad things that undergraduate students have told me about the LSE over the course of the years. Yes, I did mention that undergrad teaching comes very far down on the list of priorities of most LSE academics; I did say that teaching alone never will give you a promotion; and I did say that the in-class experience of LSE students differs only little from the in-class experience of students at lesser universities. As it turns out, I happen to believe that this is the truth.

...This was not good enough for the LSE authorities. An administrator with responsibility for undergraduate recruitment who was present during the speech denounced me to her boss, and before long the boss had been in touch with George Philip. An investigation was quickly put together and witnesses called. What I had said, Philip argued, “departed from the prepared message”; I had “embarrassed colleagues and discouraged prospective undergraduate students from applying.”

...Meanwhile, I had been blogging about the whole business. I started Forget the Footnotes in January 2006. During the first couple of weeks of its existence the blog had perhaps ten visitors per day ― family mainly and a few students with too much time on their hands. The topics varied. I wrote about things I was reading and thinking, and about events that occurred in my life. Some entries were confessions, other boasts; I tried to be thought-provoking, I tried to be funny. Of course it was all very self-promotional.

Occasionally I blogged about the LSE. I lamented the fact that political science increasingly seems to be taken over by statisticians and by rational choice theorists. I poked fun at colleagues who try to predict the timing of ministerial resignations and those who have 70 research papers on the European Parliament. I reflected on the role of expert knowledge in social development and I concluded that an expert-producing institution like the LSE had much to answer for when it comes to problems in developing countries. I pointed out that the vast majority of professors in my department are English and that the majority of junior faculty are non-English. What, I asked, can account for this discrepancy? Could there be some kind of ethnic discrimination at work?

Regardless of the topic, I was fascinated by the new powers the blog had given me. For the first time, I had access to a medium through which I could speak in public, in my own time and my own manner, without the interference of editorial filters. Since the Enlightenment, people in Europe have claimed to believe in free speech, yet the right to speak has always been restricted to a privileged few. Only people with privileges have had access to a newspaper column or a TV channel. Internet technology and blogs are changing all this. Now for the first time everyone with a connection has access to a world-wide audience. The question is whether people of power and privilege will be in favour of freedom of speech also under these circumstances.

As far as the LSE is concerned, the answer soon became obvious. George Philip wrote me an email on March 24, 2006, in which he reprimanded me for the Open Day speech and for maintaining a blog.

The blog, he said, “makes statements that are enormously damaging to your own reputation … and potentially damaging to the School.” For now, Philip hoped, an “informal oral warning” would be enough, together with my agreement to 1) “destroy/cancel your blog entirely and shut the whole thing down until further notice,” and 2) “when representing the School in the future, doing so in a positive way that does not risk bringing the School into disrepute.” Philip also asked me to apologise to a long list of people.

At a loss for what to do, I emailed the colleagues in my department. The big professors got back to me quickly and publicly and they agreed with the convenor. Clearly, they concluded, I had overstepped the line and clearly there can be no such thing as a general right to blog. A few junior colleagues got back to me privately with statements of support. They didn’t agree with what I had said, they declared, but they defended my right to say it. Meanwhile most of my colleagues simply kept their heads down. Why risk the chance of a promotion? Most issues are complicated, freedom of speech must have limits …

There is no official LSE policy governing blogging for student and staff. However, the School’s “Code of Practice on Free Speech” incorporates explicitly the Universal Declaration of Human Rights of the United Nations, 1948:

“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his or her choice.”

In fact, as the same LSE Code makes clear:

“Action by any member of the School or other person contrary to this Code, will be regarded as a serious disciplinary offence and, subject to the circumstances of the case, may be the subject of proceedings under the relevant disciplinary regulations, as promulgated from time to time.”

George Philip and Howard Davies are clearly both in violation of this code. They both denied me my academic freedom and they both sought to close down my blog. These are regarded as “serious disciplinary offences” by the LSE’s own rules! At the same time, as numerous people inside the School assured me, there is no point in trying pursuing the issue legally. What LSE committee would ever go after a convenor or the director of the School itself? Don’t be naive!

Eventually George Philip seems to have realised that he had no legal leg to stand on. First he sent me a message saying that I could put my blog back up again but only once he had given me permission. A few days later he grudgingly acknowledged that I had the right to maintain my own blog on my own web-space.

Instead of trying to close down the blog, they tried to dig up dirt on me. Clearly they were preparing some kind of process. A well-informed source assured me that George Philip was convinced I had gone clinically mad, and rumours to that effect were circulating in my department. One day a motorcycle courier delivered a confidential invitation to go on a medical leave. Needless to say I declined. One of my teaching assistants reported:

You might be interested to know that I recently received an email from [the Government Department] asking me the way to provide them with feedback about the way you were supervising undergraduate teaching (how often you met with me, whether you monitored me, etc.). I don’t know if it is a regular procedure or a way of trying to intimidate you, but I made sure that nothing of what I replied could be held against you.

This kind of intimidation is threatening. Neither George Philip nor Howard Davies have retracted their threats and I have not been given an apology. I am still under surveillance. There is one computer at the LSE that has checked out my blog over 850 times, and there are several other computers that have clocked up many hundreds of hits. These could of course be fans, but somehow I doubt it...

There is much to be learnt from this story. I draw the following conclusions:

• academic freedom and the freedom of speech are threatened by the commercialisation of education. We must reaffirm these rights before we all are turned into salesmen.
  
  
• new media, notably blogs, make geniune freedom of speech possible for the first time. Even the most pro-free speech institutions are not ready to cope with the consequences. A reaffirmation of these rights is urgently needed. Students and staff must be protected from intimidation.
  
  
• academics rarely practice what they preach. Taken as a whole, my colleagues showed their repressive tendencies and their cowardice. My downfall was watched by hundreds of LSE colleagues who asked themselves only what the implications would be for themselves and their careers.
  
  
• students are the only ones idealistic, or naive, enough to take the official statements regarding rights seriously. The LSE students analysed the situation in a second and never hesitated to stand up for my rights (in some cases, to some considerable danger to themselves). Ironically this only proved the point I initially had made in my Open Day speech — that its students are LSE’s greatest asset.'
  

Leadership close to the bone...

The web site of the Leadership Foundation for Higher Education (LFHE) in the UK, states:

'...The Leadership Foundation provides a dedicated service of support and advice on leadership, governance and management for all the UK’s universities and Higher Education colleges... the Leadership Foundation is committed to developing and improving the management and leadership skills of existing and future leaders of Higher Education... In the first 3/4 years, our major programme of development is supported by £10m from the four UK funding bodies...'

If you download the membership directory at the site, you will notice that each member university has an allocated 'Leadership and Management Development' person, usually a senior manager. So you can check who the lucky 'Leadership and Management Development' person is in your university, and we'll let you decide on the leadership qualities of these individuals.

The LFHE site also states: '...Top Management Programme (TMP) is a personal and professional development programme for those operating at the most strategic levels in HEIs. Participants should be responsible for a substantial area of the institution’s operations, in either an academic or an administrative role... TMP is a tailored opportunity for those with the potential to reach the top, to prepare for the top positions.

TMP includes :

• Personal diagnostics - including 360 degree feedback
• Focused workshop sessions
• Case Studies and simulations
• Group and individual projects
• Action Learning
• Coaching...

The Head of Department (HOD) programme is a six-day development programme, delivered in two modules, for those who are newly appointed to head of department posts in academic, administrative or professional services environments within higher education. It is designed to engage and develop those who are new to the operational challenges of leading and managing an academic, research or support team.

HOD focuses upon the fundamental attributes of personal leadership and its application in the complex organisational context of the higher education sector. The programme provides a framework exploring the practise of leadership, methods to approach challenging staffing issues and how change can be managed and achieved...

Outcomes

Participants will:

Examine the application of leadership and management in order to achieve organisational aims [these could be anything] and improve their own performance [we'll vote for that...]

Ask ‘what is strategy?’ and consider how to move beyond purely operational management to become a more strategic thinker [pigs fly...]

Explore the cross institutional ‘big picture’ of UK and global HE leadership [how to make money...]

Learn how to identify, strengthen and deploy leadership styles and gain greater awareness of the impact on others of their actions [self-reflection!]

Investigate risk and systematic management of processes and outputs [sorry, but incapable...]

Appraise successful mechanisms for managing conflict [pigs fly...]

Consider the factors which affect and support personal and organisational performance [yes, like their own ignornace and incompetence...]

Enhance their ability to give and receive constructive feedback [we love this one, academic freedom of expression!]

Develop an objective picture of their current leadership strengths and developmental needs [useless and incompetent...]

Formulate and prioritise a personal development plan [yes, there will be a test tomorrow morning...]

Gain an effective network of relationships with peers on the programme [liaise with other bullies...]

Special features

Personal diagnostics which will enable participants to appreciate their approach to leading and managing change [may we suggest they look for another job...]

Practical exercises, simulation, case studies and comparisons [what about some real teaching...]

Cross institutional understanding of leadership practice in UK HEIs [downsizing...]

Using Shakespeare’s Henry V, a session facilitated by Olivier Mythodrama allow participants to explore and apply the notion of inspirational leadership and engagement with their teams [Zzzzzzzzzzzz...]

Now you would have thought that with all this dedicated assistance (and all the money available), that our academic managers would become/are enlightened leaders. But there is more...

The icing on the cake:

'...Senior management teams face the challenge of creating and maintaining a positive working environment in their institutions. Sustaining a positive working environment and culture is a key objective of university policies, and many feel that the best way to achieve this is through emotional intelligence. Many factors may work against this including:

• poor performance management systems
• harassment
• bullying
• unmanageable stress levels

The Leadership Foundation recognises that these factors may have a negative impact upon the performance of the institution and have a detrimental effect upon working relationships. The quality of leadership can play a key role in creating the climate and conducive to a positive working environment...'

May we suggest that some academic 'leaders' lack emotional intelligence and they will never get it through any 'leadership' workshop - at a cost of £250 - and not even through a brain transplant...

Dealing With Bullies [In Academia]

Consider this scenario:

You are now the head of a large unit in which you have been a faculty member for many years. Until you became head, you were not fully aware of the problems with one of your colleagues, Professor Choler. Now you feel besieged by complaints from staff members about his treatment of them.

You remember, over the years, having received Choler’s periodic e-mail messages — sent to the whole department — complaining about one matter or another, but since most of them didn’t affect you directly, you paid little attention. You also knew that Choler could be unpleasant at faculty meetings, but he didn’t attend very often, and most of his complaints were ruled out of order.

Now both the messages and the conduct have become your business. In his typical e-mail message, Choler describes a problem, personalizes the fault to a single individual, and recommends a solution that usually involves humiliation, if not discipline, for that person. The people he targets (or, in some cases, their union representatives) are the ones complaining to you and demanding that you take action.

In addition, a few faculty members have asked you to “get this e-mail thing under control". At meetings Choler uses the same general tactic, usually going after a particular person with strong language and in a loud voice. This makes some people so uncomfortable that they will not attend a meeting if they see him in the room. There is no evidence in the files that anyone has ever spoken to Professor Choler about his e-mail tirades or his conduct in meetings.

What do you do?

Some difficult people are merely minor irritants: Others learn to avoid them as much as possible, and the overall working environment is not badly compromised. But a person who targets others, makes threats (direct or indirect), insists on his or her own way all the time, or has such a hair-trigger temper that colleagues walk on eggshells to avoid setting it off, can paralyze a department.

In the worst cases, this conduct can create massive dysfunction as the department finds itself unable to hold meetings, make hiring decisions, recruit new members, or retain valued ones. When I first got involved in helping department heads cope with such people, my colleagues and I used concepts and approaches we gleaned from studies of bullies.

The bullies I have encountered in the academic environment come in many forms, from those who present themselves as victims, all the way to classic aggressors who rely on physical intimidation. In academe and other settings populated by “knowledge workers,” one often encounters other kinds of bullies as well, including “memo bullies” (who send regular missives to a long mailing list) and “insult bullies” (destructive verbal aggressors).

Whatever their approaches, bullies are people who are willing to cross the boundaries of civilized behavior that inhibit others.

They value the rewards brought by aggression and generally lack guilt, believing their victims provoked the attacks and deserve the consequences. Their behavior prompts others to avoid them, which means that, in the workplace, bullies are likely to become effectively unsupervised.

I’ve seen secretaries, faculty members, and businesspeople who were so unpleasant to deal with that they were neither given the same duties as others in their environment nor held accountable for the duties they did hold. Aggressor bullies fit the usual idea of a bully: They threaten to beat you up if you don’t give them your lunch money. Victim bullies, in contrast, demand your lunch money because of some harm they claim you’ve done to them.

While many workplaces have bullies, institutions of higher education may be especially vulnerable to them because of some of the distinctive characteristics of academe. First, bullies flourish in the decentralized structure of universities: the isolation of so many microclimates, from laboratories to small departments, creates many opportunities for a bully to run roughshod over colleagues. Then too, the bullies of academe typically manipulate the concepts of academic freedom and collegiality with flair. The propensity of bullies to misuse these central academic concepts only adds to the importance of being well grounded in those concepts yourself. If you have a firm understanding of what academic freedom is and what it is not, you’ll be better prepared to cope with those who try to distort the concept for their own ends.

Another reason people in academe are generally unprepared to deal with bullies is that bullies are relatively rare. They are what is known as “low-incidence, high-severity” problems: one in which the problems don’t arise very often, but when they do they are so serious that they can threaten the integrity of the environment.

For prevention of bullying, creating and maintaining an environment in which respectful professional interactions are expected and reinforced is the most powerful approach. When unprofessional or uncivil conduct occurs in the work-place, it’s important to nip it in the bud. The tone of your response should be nonconfrontational: “Oh, I’m sorry, maybe we forgot to tell you that we don’t act that way here.”

Dealing with the problem head-on and promptly is critical. If someone is verbally abusive to staff or threatens physical violence, the appropriate penalty must be imposed. Any other response only erodes the trust of those who work hard to do the right thing. Similarly, ignoring or tolerating inappropriate conduct in the workplace sends the message that the way to prosper is to misbehave.

How to Handle a Bully

I once got a request from a department administrator (let’s call him Holmes) for advice about how to deal with a visiting faculty member (and let’s call him Cooper) whose contract was to expire in just a few weeks. Cooper had been verbally explosive all year, so people had learned to tread gently around him. But recently his volatility had increased, and a colleague who collaborated with him on research had begun to feel unsafe around him.

I asked Holmes whether Cooper had been informed that his outbursts were causing concern. Well, Holmes responded, “everybody knows” that that kind of behavior is unprofessional. I advised calling Cooper in, nonetheless, and telling him that his conduct was unsettling to his colleagues and students.

He’d be doing both Cooper and the intimidated collaborator a favor by letting Cooper know — unequivocally — that he was expected to control his behavior and to conduct himself professionally in all interactions with colleagues, students, and staff. People who are acting out need to be told clearly that there will be consequences for uncivil behavior. Holmes acknowledged that this made sense.

But what could he say, and how should he say it? I’ve learned to recommend a three-step process: First, try to identify and describe a pattern in what you’re observing. In this case, the escalating explosive verbal conduct is the pattern, and it intimidates others. It sounds like a bullying situation.

Second, sketch out a general strategy. In this case, the strategy is to send the message to the offender that this sort of behavior is not welcome in this department or this university.

Finally, it is tremendously helpful to outline the points you wish to communicate and practice how you’ll say them. Be sure your words convey the message that you expect him to change his behavior — a warning that he is approaching, and has crossed at times, a boundary that must not be crossed. After the conversation, you should send a cordial and factual confirming letter restating the gist of what was said.

Some people’s eyes work better than their ears, and you want to be sure the bully gets your message. Let’s hope no further action will be necessary. But if the bully’s behavior does not revert to the upsetting-but-tolerable category, your next response will be to call the campus police, who will supply a bit of what my colleagues and I have come to call “blue therapy": a talk with a uniformed (and trained) peace officer.

I predict that, should the need arise, the interaction with the police will be both educational and therapeutic for a tantrum habit. But many situations involving academic bullies date back years, if not decades. Problems with long histories are not quickly resolved. In fact, it generally takes more than a year to bring about significant change in a pattern of conduct that stretches back over years. But significant, positive change can be achieved, given the right mindset, some patience, and persistence.

The key to changing a bully’s behavior is to change the environment. Most bullies have never been confronted with the consequences of their actions, or even been told that their conduct is not well regarded in their environment. Thus your task is to change the environment to begin attaching natural consequences to unpleasant behavior, and most of all, to remove any rewards it has yielded. This is the essence of the hard work to come.

It’s not hopeless — you can make a difference. True, taking action will not be without cost. But what will be the costs of inaction?

— C.K. Gunsalus

C.K. Gunsalus is special counsel and adjunct professor in law and medicine at the University of Illinois at Urbana-Champaign, where she formerly was associate provost. She has served as chair of the American Association for the Advancement of Science’s Committee on Scientific Freedom and Responsibility. This essay is adapted and reprinted [without] by permission of the publisher from her new book, The College Administrator’s Survival Guide (Harvard University Press).

From: insidehighered.com

Are they claiming that you are emotionally unstable?

PsychologistEthics.net is designed to help inform the public about political psychology; that is, psychologists violating established codes of ethics to carry out the political agendas of others, especially employers. Political psychology is often used to facilitate workplace mobbing...

When one imagines using mental health professionals to target undesirable individuals, one almost always thinks of totalitarian governments such as the former USSR, China, and Cuba. There is a long and ugly precedent of using mental health professionals in those societies to target politically undesirable people and have them placed in mental institutions involuntarily.

Human rights groups refer to this practice as "political psychiatry." Victims of political psychiatry are usually people who have filed grievances or complaints against employers or officials, or are union organizers, people who have publicly criticized officials, members of minority religions, and whistle-blowers. Because of reports of the former Soviet Union and China committing political dissidents to mental institutions, the World Psychiatric Association passed the Madrid Declaration in 1996 declaring that "all forms of psychiatric diagnosis and treatment on the basis of the political needs of governments are forbidden." Unfortunately, no such declarations have been made for or by psychologists to condemn political psychology...

In this case, an SIUC faculty member was mobbed by the university administration with the help of some of her departmental colleagues because they disliked her opinions, which were expressed through grievances, guest columns and letters to the editor, speeches, union activism, and by joining in a suit with other faculty members against the board of trustees to protest the firing of a popular chancellor.

As a result, her office was moved out of the department and her mail was stolen. Frequent whispering campaigns were held in the hallways by colleagues who quickly scattered behind slammed doors when she was sighted. She was unjustly blamed for negative tenure votes and missing department materials. The nameplate on her door was vandalized and she learned that she was referred to as "the little twerp" by some.

The university administration then hired a licensed psychologist who, the faculty member was told, would conduct counseling and conflict resolution for her deeply divided department, but who instead wrote a report for the administration indicating that the faculty member was destructive and in need of discipline and professional help.

The administration disseminated the psychologist's report to over 20 people on the campus. In this case, the psychologist made an unsubstantiated assessment of the faculty member based solely on what the faculty member's "enemies" had said about her...

So they never gave you a [good] reference... Well, make sure you hit back hard!

Relaxion Group Plc -v- Rhys Harper

June 2003 The Court of Appeal ruled that an ex-employee should be able to bring a claim of discrimination even after the employment has ended, for post-termination detriment.

Employers could now face discrimination claims from past employees who are, for example, dissatisfied with a reference provided or the lack of a reference - or even the way that an appeal against dismissal or some other post employment investigation has been conducted.

The Lords ruled that where 'the relationship between employer and employee is still continuing, notwithstanding the termination of employment, it should still attract protection'. The issue lies in identifying when the relationship is still continuing.

Whistleblowing Provisions Apply to Post-Employment Detriment

The Court of Appeal has held the "whistle-blowing" provisions in the Employment Rights Act (ERA) which protect workers from detrimental treatment where they have blown the whistle also cover detriments suffered post termination.

The Claimant, Mrs Woodward, was employed by Abbey National's Treasury Services from 1991 until she was made redundant in 1994. In January 2003, Mrs Woodward made a complaint of detrimental treatment. She argued that her ex-employer's refusal to provide an employment reference was due to the fact that she had made a protected disclosure under the "whistle-blowing" provisions of the ERA whilst she was still employed by the Respondent.

The Court of Appeal had previously ruled that ex-employees could not rely on the "whistle-blowing" provisions of the ERA as the legislation only protected employees against detriments suffered whilst in employment.

However, the House of Lords had subsequently ruled that victimisation claims under discrimination legislation could be brought by ex-employees. The Court of Appeal was faced with the task of deciding whether these two decisions could be reconciled and it essentially decided that they could not: the Court considered that complaints of detriment under the "whistle-blowing" provisions of the ERA dealt with the same concept as victimisation complaints under discrimination legislation.

The Court of Appeal overturned its earlier decision and held that the provisions protecting against detriment in the ERA should be interpreted so as to afford protection to employees suffering a detriment after the termination of their employment.

The provisions in the ERA dealing with protection from suffering detriment in employment extend beyond whistleblowing cases and cover matters such as jury service, health and safety and working time. The decision in this case will extend to all cases of detrimental treatment under the ERA and employers will therefore need to ensure that procedures are in place to prevent detrimental treatment after termination.

One of the most likely cases where employers are at risk of subjecting former employees to detrimental treatment will be in relation to the provision of references.

Woodward v Abbey National Plc

The Court of Appeal has held that an Employment Tribunal does have jurisdiction to consider a complaint by a former employee that she suffered a detriment as a consequence of her employer failing to provide her with a reference (albeit eight years after her employment terminated) on the grounds that she blew the whistle whilst employed.

Since the House of Lords decision in Rhys-Harper, it has been clear that former employees can bring claims under the discrimination legislation in relation to events that took place after the termination of their employment in certain circumstances. Now, the Court of Appeal has ruled that former employees can similarly, in certain cases, bring claims under the Employment Rights Act 1996 - and which may extend beyond blowing the whistle to a detriment suffered as a result of raising concerns in relation to health and safety, working time etc.

Accordingly, additional care must now be taken in the treatment afforded to former employees where the circumstances are such that the former employee may be able to rely on protection afforded by the Employment Rights Act 1996. Employers should review their policies on giving references (or any other actions post termination) carefully to ensure that it is applied consistently across the board.

Post-termination discrimination

This case concerned an issue commonly faced by HR managers, namely that of giving references for employees post-termination. It has been possible for an employee to make a claim against a former employer in relation to detriment suffered where the discrimination arises out of, and is closely connected to, an employment relationship that has come to an end. The questions raised by this case were how long does that obligation last for and does it apply to both solicited and unsolicited information?

Shoebridge was employed by the Metropolitan Police Service (the Met) until October 2001. During his employment, he had made a successful complaint of sex discrimination. After leaving the Met he worked for a number of other organisations before providing his services to Sky News Television. Some 14 months after he left the Met, his arrangement with Sky ended abruptly, allegedly as a result of the Met suggesting to Sky that Sky should no longer engage him. Shoebridge subsequently commenced proceedings against the Met for victimisation. He claimed that unsolicited statements made by the Met had led to the termination of his arrangement with Sky.

The question was, did the Tribunal have the jurisdiction to hear the complaint? The Met sought to make a distinction between unsolicited comments and those given in response to reference requests. The EAT did not agree that such a distinction should be made and held that unsolicited comments would fall within the Employment Tribunal's jurisdiction.

The second point was whether or not the elapsed time since dismissal affected the situation. The Employment Appeal Tribunal again found in favour of Shoebridge on this point, determining that an employee has the expectation of non-discriminatory conduct by a former employer whenever the former employer is discussing the employee. It was decided that the Employment Tribunal did have jurisdiction to hear the case.

In considering the issues, the Employment Appeal Tribunal suggested that, when dealing with this question, the Tribunals should consider whether there is a substantial connection with the employment relationship or a sufficiently close connection with the employee. The important point to remember is that employers must always consider the comments given in respect of employees, regardless of when the employment terminated.

So they never gave you a [good] reference... Well, make sure you hit back hard!