Compromise Agreements: How bully managers get away with it

Simple story:

- First you made the mistake to raise a legitimate formal complaint against your bully fascist academic line manager. You were naive enough to think that the procedures in your university will work.

- Then you find out that you are accused of something you have never done. In effect, you are mobbed out of your work. The bully fascist academic line manager pulls the strings - he/she suspend you on spurious grounds.

- First you have to fight depression - some never recover, then you decide to fight back. The bully fascist academic line manager tries to dicredit you - your excellent staff appraisals are ignored. Internal procedures resemble a Mickey Mouse - Stalinist court.

- You continue to fight back - the last thing they want is you going to court.

- At some stage they realise they can't get rid of you - they have tried to make you resign - why should you? So now they start offering you money - compensation - they want to buy you out. Remember this is taxpayers' money.

Small problem: The compensation comes in the form of 'confidentiality agreements' and/or 'compromise agreements'. 'We will give you this amount of money BUT first you need to accept and sign a number of clauses!'

Well, we managed to get hold of one of these lovely documents, and here are some extracts:

'...The university will, as compensation for loss of employment but without admission of liability and without prejudice to Clauses XX, XX and XX below, pay to the Employee within fourteen days of the date of this Agreement the sum of £XX.XXX (“the Payment”).

...The Employee shall refrain from instituting or continuing before an employment tribunal any proceedings in respect of any of the Proceedings, and all grievances and disciplinary proceedings will be ceased by both parties.

...The Employee acknowledges that the university is relying on clause XX of this Agreement in deciding to enter into this Agreement. If the Employee breaches any of the warranties set out in clause XX and a judgment or order is made against the university, the Employee acknowledges that the university will have a claim against the Employee for damages of not less than the amount of the judgment or order.

...In the event of the Employee at any time failing to observe the terms of this Agreement or any of his obligations hereunder the Payment shall cease to be payable and the Employee shall upon demand repay the Payment and the university shall be entitled to recover as a debt any monies already paid only to the extent of damages actually suffered.

...The Employee confirms that he will return on or before the Termination Date to the university all equipment, records, correspondence, documents, papers, software, backup tapes, keys (including originals, copies and extracts of any of the foregoing) belonging to the university and any other university property in his possession or subject to his control or responsibility and that the Employee has not retained any copies of the foregoing.

...The Employee undertakes not directly or indirectly to make, publish or communicate any disparaging or derogatory statements whether in writing or otherwise concerning the university or any of its governors, officers, or employees and to maintain, without limit in point of time, confidentiality as to the reasons for which and the terms upon which the Employment was terminated and as to the business affairs of the university and the business and personal affairs of its governors, officers and employees subject only to disclosure for the purpose of obtaining professional advice or if required or permitted by law or to such information being or coming into public domain other than by disclosure by the Employee in breach of the terms of this clause.

...The Employee accepts the payment referred to in the Compromise Agreement as “the Payment” in full and final settlement of all other or any claims costs expenses or rights of action of any kind whether contractual or tortious other than the Proceedings and howsoever arising which he is or might be entitled to make against the university or its governors...

...The Employee agrees to refrain from instituting any proceedings in any Court or tribunal of relevant jurisdiction for any remedy arising from any matter under his contract of employment with the university or any other contract connected with the Employment and made between the parties to this Agreement or the termination of such contracts or arising during or in connection with the Employment or otherwise save for the purpose of enforcing the terms of this Agreement.'

More on psychometric testing...

Stuart said...

Bureaucratic brilliance - psychometric testing for corporate compatibility (no Albert Einsteins, Edward Tellers, eccentric thinkers or non-authoritarians need apply), but no testing for empathic and emotional maturity. Historians of science repeatedly refer to the context of progress, not the individuals.

Why aren't we working for respectful and dignifying environments in which everyone has the opportunity to excel, where disrespect and undermining the dignity of others is not acceptable?

A wise colleague once pointed out to me that people often actively promote the very skills in which they are themselves weakest, because they are correctly aware of the difficulties they face but incorrectly assume themselves to be experts. Thus the promoter of time management skills, or research skills or people managment is often hopeless at these same tasks, while the true expert does them apparently effortlessly and is not conscious of the need to continuously refer to them. The bullying institution will therefore be most proactive in manufacturing policy for the problems of which it is so painfully aware, but incapable of handling.

New tests will probe employee suitability

Academics seeking promotion could soon be vetted for personality traits as well as experience. Academics could be subjected to controversial "personality testing" before being approved for jobs or promotions as managers continue to examine corporate-style human resource management.

Anglia Ruskin University confirmed this week that it was conducting pilots for a "psychometric test" as part of a programme of staff career development.

Experts predicted that the tests, which seek to establish personality types and to predict how staff might behave in certain work scenarios, would be increasingly used for development and even recruitment as academic jobs become more complex.

John Rust, director of the Psychometrics Centre at Cambridge University, said that while the test might not always be appropriate in a sector that valued individuality and in which peer review and publications could be a reliable indicator of research ability, they could be useful.

Psychometric tests could be used to check for initiative, team-working and social skills - qualities stereotypically lacking in some otherwise brilliant, focused academics, he said.

Robert McHenry, a psychology lecturer at Oxford University who is head of business psychologists OPP, said he had used personality tests to help in appointing senior academics at Oxford. He predicted an increase in their use in selection for jobs at all levels.

"Academics are often chosen for their narrow specialism and find it difficult to co-operate or work in teams," he said. This means testing at the selection stage "can be terribly valuable", he said.

Union leaders this week warned that the tests could be "highly subjective".

"At too many institutions the people at the top seem to have little understanding of the basis against which staff should be judged," said Sally Hunt, general secretary of the University and College Union. "Academic achievement plus demonstrable ability to do the job continue to be what should count."

Anglia Ruskin declined to provide any details of its pilots but confirmed that the tests were being used in a gender equality initiative. They helped the university identify the "motives, preferences, needs and talents" of staff.

By Phil Baty. From: http://www.thes.co.uk

Equal Opportunities – an era of compulsory training?

Equal opportunities training is a vital component in any equality plan – it helps avoid discrimination, making managers and staff aware of the many forms of discrimination, and equips them with the knowledge needed to recognise and tackle potentially discriminatory practices or areas of inequality.

Such training is also a very useful way of reinforcing policies designed to ensure good practice, for example in the area of recruitment, by ensuring that selection decisions are taken against clear person specifications and selection criteria, and that the records of decisions necessary to defend any subsequent proceedings are kept.

While training should not be viewed merely as a defensive mechanism to minimise the risk of liability in employment tribunals, in a discrimination claim it is typical that the very first question asked in cross-examination of a university's witness will be whether they have received equal opportunity training.

Compulsory training within the sector is still largely the exception rather than the rule, although some institutions do require that, for example, chairs of recruitment panels have undergone such training. Where the witness has not received training (and it is a specific application of Sod's Law that the witnesses in your case will fall into this category), they run the risk of being put very much on the back foot right from the start of cross-examination.

If the university offers training but the member of staff states that they are not aware of this, the university's commitment to ensuring equality is called into question. More commonly, witnesses will accept that they were aware of voluntary courses but that they did not attend.

Witnesses who claim that they did not believe that they needed equality training risk being perceived as arrogant and are setting themselves up to be challenged on any departures from best practice or the university's policies. Those who claim that they were too busy to attend will be asked what they considered was more important than avoiding discrimination. We have even dealt with cases where witnesses have undergone a 'Damascene conversion' during cross-examination and admitted that with hindsight they would have found equality training very helpful!

While these issues are not necessarily fatal to the defence of any tribunal claim, the ideal scenario would be that the university provided comprehensive equality training to all of its staff. We know from discussions with several HR practitioners in the sector that they favour compulsory training. There is a growing argument that this approach is not just preferable, but may actually be a legal requirement for universities.

The nature of a university's obligations under discrimination law is fundamentally changing as they are increasingly caught by positive obligations to eliminate discrimination and promote equality of opportunity. These have existed in relation to race equality for a few years now, and apply in relation to disability from December 2006 and gender equality from April 2007.

It is clear in due course these obligations are likely to be extended to all areas of discrimination – for example age, religious belief and sexual orientation. These obligations require universities to take proactive steps to promote equality and to avoid discrimination in their treatment of staff and students.

If staff – especially managers – are not aware of the basic principles of discrimination and how to apply these in their every day dealings with staff and students, can the institution really say that it has done enough to comply with its positive obligations?

From: http://www.pinsentmasons.com

Well equipped and qualified for the task

HEFCE-GMP Projects - Occupational stress in higher education

Details of this project are as follows:
Lead HEI / Representative body University of Plymouth

The project aims:

* to provide stress benchmarks for HE
* to enable comparisons with other professions and intra-sector comparisons with other HEIs
* to relate these to a survey of current good practice in stress management
* to support a consortium of HEIs to institute and evaluate institutional strategies to improve stress management.

Collaborative partners:

* University of Birmingham
* Bolton Institute
* Brunel University
* University of Gloucestershire
* Imperial College of Science Technology and Medicine
* Keele University
* King's College London
* Leeds Metropolitan University
* UMIST
* Manchester Metropolitan University
* University of Newcastle-upon-Tyne
* University of Plymouth
* University of Surrey
* University of Wolverhampton

Project Leader: Professor Christine Webb
Position Professor of Health Studies
Department Institute of Health Studies
Institution: University of Plymouth
Address: Veysey Building, Earl Richards Road North, Exeter, EX2 6AS
Telephone: 01392 475173
Email: c1webb@plymouth.ac.uk
--------------------------------------
In our opinion, some of the collaborative partners are well equipped and qualified for the task :(

Admin-psychos

It would seem that we are into profiles and photos of admin-psychos these days - no doubt an indulgence and a diversion from our normal pursuit of dealing with bullying in academia. But then again the occasional indulgence -please- should be forgiven. So the question is: Is this the stereotypical image of a bully academic manager?

What a harassment/bullying policy should include

1. Commitment from Senior Management

2. Acceptance that bullying is an organisational issue

3. A statement that bullying is unacceptable and will not be tolerated

4. Clear definitions of unacceptable behaviour

5. Legal implications for organisations and individuals

6. A statement that bullying may be treated as a disciplinary offence, and it should listed as a misconduct and gross misconduct in the disciplinary procedure

7. Steps to assess and prevent bullying

8. Mechanism for third party complaints

9. Mechanism for initiation of the policy without a complainant

10. Duties of Heads of Department and Supervisors

11. Confidentiality for complainants when they report bullying

12. Procedures to protect complainants from victimisation

13. Clear complaints procedures, separate from the normal grievance procedure

14. A trained network of ‘confidential advisers’ and where to contact them

15. Informal complaints procedure

16. Formal complaints procedure

17. Procedure for investigating complaints

18. Information and training about bullying and the policy

19. Repair mechanisms/options outlined

20. Access to support and counselling

21. Review and monitoring

AND

22. Is it jointly agreed by employer and trade unions?

23. Does it cover everyone?

24. Is it implemented?

From: Equality Challenge Unit

University Employment Law Briefing

Gibbons Report recommends abolition of the statutory dismissal and grievance procedures.

Employers need 'clear, simple, non-prescriptive guidelines on grievances, discipline and dismissal … encouraging early dispute resolution". Sounds familiar? This was of course the objective of the statutory dismissal and grievance procedures, introduced in October 2004 to promote the resolution of employment disputes in the workplace rather than in the employment tribunal. But this recommendation comes from a DTI commissioned report which concludes that the statutory procedures have failed to meet this objective and recommends that they should be abolished, a mere two and a half years after they were first introduced.

The Gibbons Report, commissioned by the DTI to review employment dispute resolution in Great Britain makes 17 recommendations which, if implemented, will have far reaching consequences for the handling of workplace disputes. The most significant of these is the recommendation that the statutory dispute resolution procedures be abolished in their entirety – a damning indictment on those procedures but one which echoes the sentiments of many employers in the sector. Michael Gibbons, the author of the Report, said 'I was struck by the overwhelming consensus that the intentions of the 2004 Dispute Resolution Regulations were sound and there was a genuine attempt to keep them simple. However, they have had unintended consequences which far outweigh their benefits.'

There is a general consensus among employers – in the University sector and beyond – that the statutory procedures have created an unnecessarily high administrative burden for both the employer and employee. The Report highlights that many businesses consider that the statutory procedures have led to an increase in the number of disputes they experience. Further, rather than encouraging early resolution, the procedures have led to a more formal process being used to address problems which might easily have been resolved informally. As a result, conflicts escalate, taking up more management time and engaging employees in an unnecessarily formal and stressful process. There is evidence that both employers and employees are seeking legal advice on their disputes at an earlier stage than before, and that the costs and management time involved in dealing with disputes is steadily increasing.

The Report also notes that the application of the 'one size fits all' formal approach inherent in the statutory procedures creates significant problems – the procedures often appear excessive or difficult to apply to the situation in question. The strong links between the formalities of the statutory procedure and employment tribunal proceedings creates a focus on ensuring that the procedures are strictly adhered to rather than addressing the causes of the underlying problem. [OUR COMMENT: Yes, the causes of the underlying problem, i.e. institutionalised bullying and harassment by managers.] This is particularly so given that an employer risks a dismissal being found to be 'automatically unfair' if the statutory dismissal procedure is not followed. The procedures also make both parties more defensive, and entrench their respective positions, making it more likely that they will ultimately resolve their dispute in the employment tribunal. [OUR COMMENT: And is this the fault of the employee?] Alternative approaches are needed to provide more appropriate methods of achieving an earlier, amicable and cost-effective resolution to workplace disputes and grievances. [OUR COMMENT: At last some sense.]

Implications of the abolition of the statutory procedures

It is highly likely that the Gibbons Report will result in the statutory procedures being abolished or undergoing radical amendment. This will bring some immediate benefits for Universities, particularly in dismissal cases where there would no longer be the risk of automatic unfair dismissal for failing to follow the statutory dismissal procedure. [OUR COMMENT: Is this a good thing for employees?] This may be especially helpful in relation to fixed term contracts, where many institutions still struggle at times to manage the expiry of a fixed term contract in a manner consistent with the statutory '3 step' procedure, or where the volume of fixed term contract dismissals makes compliance impracticable.

Similarly the removal of the risk of increased compensation for failing to follow the statutory grievance procedure will be welcomed by Universities, especially given the wide interpretation of what counts as a statutory grievance. [OUR COMMENT: Yes, they get off the hook.] Further, the risk that managers may rush to use formal procedures to deal with any complaint – for fear of breaching the statutory grievance procedure – would also be removed. There may also be no need to hear post-termination grievances from former employees.

However, there would also be some disadvantages. Abolishing the statutory procedures may see a return to the pre-October 2004 situation where the employer first becomes aware of a dispute when it receives a tribunal complaint form. It is also likely that any new regime would be less prescriptive than the statutory procedures and therefore less certain in its application.

What will replace the statutory procedures?

The key issue is what, if anything, will replace the statutory procedures. The Gibbons Report offers few concrete clues. One recommendation is that the Government should look at ways of minimising disputes by simplifying employment law 'recognising that its complexity creates uncertainty and costs for employers and employees'. This is a welcome objective but the report gives no suggestions as to how this can be achieved, noting only that the impact of European Directives may create difficulties. The Report also recommends that the Government considers ways to enable tribunals to weed out unmeritorious claims, but again without any specific recommendations as to what new powers tribunals should receive.

The other main recommendations of the Report are:

• that the statutory procedures should be replaced with clear simple non-prescriptive guidelines on grievances, discipline and dismissal. This sounds very much like a slightly beefed-up version of the ACAS Codes of Practice;
  
  
• that tribunals should have new powers to take into account the reasonableness of the parties behaviour and procedure when making awards and cost orders. This could see similar powers to reduce or increase compensation as currently exist in relation to compliance with the statutory procedures, but perhaps with less predictability of what would constitute default;
  
  
• that the tribunal claim form should be revised to reduce its length and complexity. This would see a return to something like the pre-October 2004 version;
  
  
• that the fixed time limits for ACAS conciliation introduced in October 204 should be removed;
  
  
• that claimants should have to access a helpline service before bringing a tribunal complaint. The helpline would advise on alternatives to bringing tribunal claims and its use would be mandatory as claimants would only be able to access a claim form via this helpline. Similarly, employers would only be able to get a response form to complete once they had received advice on the potential consequences of defending a complaint. The aim is to ensure that both parties are advised on the reality of bringing tribunal claims and the benefits of seeking to resolve their dispute by other means; [OUR COMMENT: What means exactly?]
  
  
• that increased emphasis should be given to mediation and other forms of alternative dispute resolution, to reduce the number of claims proceeding to tribunal. This could see the introduction of a free early dispute resolution service before a claim is lodged, or the greater use of judicial mediation when a dispute reaches the tribunal system. Tribunals should be able to take into account the parties' attempts to settle disputes, or their willingness to explore resolution through mediation, when making awards of compensation or costs, giving the parties an incentive to explore settlement or mediation;
  
  
• that employers, trade unions and other employee organisations should be "challenged" to commit to implementing and promoting early dispute resolution, for example through greater use of in house mediation, early neutral evaluation of claims and provisions in contracts of employment which made mediation of disputes a contractual obligation for employer and employee, whether as part of, or in addition to, the employer's grievance procedure. [OUR COMMENT: Ah, well here is some work for our union (UCU).]

Conclusions

The clear message from the Gibbons Report is that the measures introduced in October 2004 – statutory procedures, new claims forms, fixed ACAS conciliation periods – have failed to reduce the number of disputes and their related costs for employers, employees and the tribunal system. However, it is unlikely that we will see a simple return to the pre-October 2004 position. Universities will need to keep up to speed with these developments, particularly once concrete proposals are issues by the Government for reform of the existing disputes resolution procedure. In the meantime, it may be useful to consider and explore sources of alternative dispute resolution and whether there is a greater role for mediation – or mediation-style procedures – to complement existing grievance processes.

From: http://www.pinsentmasons.com
----------------------------------------------------
Perhaps our union (UCU) may wish to engage in this process and not just follow what the DTI recommends. We welcome the emphasis on mediation-style procedures but these will require senior managers who are trained appropriately - some wishful thinking here.

Why grievance procedures are inappropriate for dealing with bullying

Grievance procedures are inappropriate and ineffective in dealing with bullying for a variety of reasons:

• Bullying is equivalent to rape (it's psychological and emotional rape because of its intrusive and violational nature) and grievance procedures force the victim of this rape to have to relive the trauma repeatedly - this could be a breach of Article 3 of the Human Rights Act: No one shall be subjected to inhuman or degrading treatment.
  
  
• The person who normally chairs the grievance is usually the bully, or a friend of the bully or appointed by managers with the single purpose to hide the truth and institutional/organisational failings.
  
  
• If the bully is a co-worker, the manager who would handle the grievance has already failed as a manager for allowing the bullying to occur and for failing to deal with the bullying before it got to the grievance stage. Common practice at this stage is for the manager to give a statement against the victim and lie.
  
  
• The bullying manager has lots of friends in HR and management and will blacken the target's reputation before grievance procedures begin. This is part of the bullying tactics - for example, management may leak to a newspaper confidential information.
  
  
• Most bullies will successfully lie, cheat and deceive their way through grievance.
  
  
• The bully will make sure the grievance lasts as long a possible (eg a year or more). This is a common tactic to wear down the victim.
  
  
• The bully will deny the target access to records, sometimes rifling the target's desk and stealing notes. The bully may even falsify documents. White-collar crime is common.
  
  
• The bully manager will ban the target from having contact with fellow employees. This is breach of Article 11 of the Human Rights convention.
  
  
• The bully will threaten fellow workers into withdrawing support for the target. Intimidation of co-workers is common - if you support him we will not renew your contract and if you are a part-time lecturer/teacher you will think twice about supporting the victim.
  
  
• The bully and the employer will limit representation to a union representative (many reps are untrained, unsupported, and some are part of the problem) or co-worker (all of whom are too frightened to stand up for a fellow worker). Often there is no union rep and no co-worker.
  
  
• The so-called 'investigating officers' are appointed by managers - in effect, management is judge and jury.
  
  
• Investigating officers and chairs of grievance hearings very rarely had specific and suitable training to deal with workplace bullying.
  
  
• Universities have almost unlimited access to funds (tax payer's money) - the victim has to use his/her savings.
  

Staff 'swotted' by managers - Birmingham University, UK

Senior managers at Birmingham University have identified a key "threat" to their strategic goals - their own academics. This was the conclusion of an analysis by Birmingham's "leadership team" of the university's "strengths, weaknesses, opportunities and threats" (SWOT) in an early, internal draft of a new human resources strategy.

Academics were top of the list of threats and, although the university has since removed them from the analysis, representatives say that the original document highlights wider concerns across the sector about the general decline of the status of academics as universities become business-oriented.

They said that it reflected a trend where the traditional notion of universities as autonomous communities of scholars was being superseded by corporate practices and "customer" students.

Sally Hunt, general secretary of the University and College Union said: "The shift towards a market in higher education is inevitably bringing about a consumer culture in universities and the biggest losers will continue to be staff.

She said that academics were "determined to retain the spirit of what a university should be, even in this age of marketisation" and need "a renewed commitment to the principles of higher education as first and foremost a learning environment."

The issue is likely to be a key theme of the first conference of the 120,000-strong UCU at the end of May. A motion from Nottingham Trent University, to be debated, says that "the current managerialist governance culture is... doing irreparable damage to institutional organisational structures".

Another, from Sussex University, says that "current thinking about HE management, ie that the VC must act like a private sector CEO in order to 'manage' the university, is erroneous". It insists that "universities are not businesses" and managerialism is "anathema to the philosophy of higher education".

The Birmingham branch of the UCU said that it was pleased that the latest draft of the university's human resources strategy had dropped the notion that the academics were a threat. But a newsletter from the branch says that the latest version still raises questions about the university's commitment to traditional academic values of autonomy, collegiality and trust.

The branch calculates that while the words "manager" and "management" appear 119 times in the document, "researcher" appears five times, and "teaching" appears six times. The word "academic" appears twice after its removal from the list of threats.

The branch says that it fears that "rather than being treated as self-motivated creative professionals who are experts in their areas" academics are being seen as "work-units to be managed, performance-managed and even micromanaged".

"UCU members who want to work in a leading research and teaching university should be seriously alarmed by it," the newsletter says.

The strategy document, seen by The Times Higher, set "core themes" of the strategy including "performance management; reward; talent management". It includes a strong emphasis on performance management, and performance-related pay.

A list of ideal aspirations for employees includes: "If I under-perform against my targets I am clear on what the impact would be on my salary, bonus and career development. I know that if I underperform, my salary inclusive of cost of living increases will not progress."

The university said: "Because the university values the expertise and intellect of all its staff, both academic and non-academic, a cross-section of colleagues were part of a consultation process that has led to a draft HR Strategy.

"All members of staff were invited to participate in a series of discussion groups to determine the themes of the draft HR Strategy... 150 took part.

"In addition, heads of school, senior academic managers and the campus unions were consulted prior to the publication of the draft for the second stage of consultation, which is now taking place within the university.

"This strategy will enable the university to achieve its ambitions. As the consultation process shows, we believe that engaging in constructive discussion with staff will enhance the draft HR Strategy. That discussion is best held internally within the university. The full strategy will be published later this year."

From: Times Higher Education Supplement