A recent employment tribunal decision is an opportunity to improve industrial relations, says Joe Eyre
The employment tribunal which found that Jim O'Donovan was unfairly dismissed as a lecturer at Central College in Glasgow because of his trade union activities stated its judgment in extremely strong terms.
It found Mr O'Donovan did not contribute at all to his dismissal, and ordered his reinstatement. It said that no reasonable employer could have acted in the manner of Central College; that the college had exaggerated the case throughout, and that the management's view of the case was so distorted that its own explanations of its behaviour were unreliable.
The case has highlighted several issues of general relevance to the FE sector, not least the very poor state of industrial relations.
Peter Duncan, the Central College principal, and Geoffrey Johnston, chair of the board of management, complained in their evidence about unofficial lampoons of them. Extracts read in evidence were certainly harsh. But Mr Duncan then went on to claim that he had to treat Mr O'Donovan's alleged offences in the same way as a case of murder or rape, while Mr Johnston compared Mr O'Donovan's actions to those of Red Robbo, a notorious Seventies' shop steward in the car industry.
Ending national bargaining over pay and conditions of service has undoubtedly soured relations in colleges. Often, negotiators (management and staff side alike) have failed to operate the bargaining process in a way that allows them to avoid confrontation.
There is a lack of expertise and training on the part of some negotiators, but insufficient funding has compounded the problem. Many colleges still operate in deficit. Perhaps it is time to consider returning to national bargaining.
The poor state of industrial relations no doubt explains the increasing recourse to disciplinary action in the sector. Evidence given at the O'Donovan case suggests, however, that boards of management are poorly equipped to handle disciplinary cases.
Kenneth Wardrop, the chair of the college's appeals committee, stated in evidence: "At appeal there is a presentation by the principal and then we can hear from the other side. It is not a matter of right that the other side is heard."
He went on to admit, under questioning from a member of the tribunal, that he reached his decision to uphold the principal's recommendation to dismiss, not on the basis of the rules, but on the basis of what he believed. The chair of the board later stated that he was not clear if he was allowed to call witnesses at the final stage of appeal against dismissal.
If boards of management are to have disciplinary powers, then it is imperative that they have sufficient experience and training to allow them to understand clearly the procedures under which they operate. Otherwise, they are unlikely to reach reasonable decisions. The Association of Scottish Colleges and the Scottish Further Education Funding Council should be asked to identify and urgently address training needs in this vital area, or even adopt national procedures. A national appeals procedure above the level of the individual college might allow for the resolution of disciplinary problems without recourse to an employment tribunal.
There is an increasing tendency to involve lawyers in disciplinary matters.
In this case, disciplinary allegations were laid against Mr O'Donovan on the advice of the college's lawyer, Steven Miller. A colleague from the same legal firm was simultaneously giving independent advice to the board of management on the human resources aspects of the case.
Several colleges (Motherwell springs readily to mind) involved lawyers in pursuing disciplinary action against staff, particularly trade union branch officials. Around 15 union activists have been dismissed or forced out in recent years, including six executive members of the former College Lecturers' Association.
Legal advice and representation at an employment tribunal does not come cheap, and tribunals have ordered compensation worth tens of thousands of pounds to staff who have been unfairly treated. Audit Scotland should be asked to investigate the cost of this to colleges.
If the board of management at Central College were to see the tribunal's decision as an opportunity to repair the ruptured industrial relations at the college, then some good could come of the case.
The alternative is to continue the trench warfare of recent years. All those with responsibility for the sector, from the First Minister down, should be using their good offices to ensure that common sense prevails.
Joe Eyre is a former president of the College Lecturers' Association.