Academic Tenure and the Education Reform Act 1988

Published date01 January 1991
DOIhttp://doi.org/10.1111/j.1468-2230.1991.tb02643.x
Date01 January 1991
January
19911
Acrrrlerriic
Tcriitre
arid
the
Editcatiort
Rcforrtt
Act
I988
Academic Tenure and the Education Reform Act
1988
Philip
H.
Pettit*
Pearce
v
The University
of
Aston in Birmingham,
reported
only
in
The Independent
on 29 June 1989,’ is the first, and at the time of writing the only, rcported case
on sections 202-208 of the Education Reform Act 1988 which deal
with
academic
tenure. It
will
be of particular interest to many readers of this journal
as
it
concerns
tenured academic staff threatened with dismissal on the ground of redundancy. The
plaintiffs, of whom Mr Pearcc was one, were three lecturers
in
the
University of
Aston. The University was considering proposals to remove from office on the
grounds of redundancy
a
number
of
members of the academic staff. The precise
numbers and names had not been announced but the probability was that the list
included the plantiffs. Prior to
a
meeting of the University’s Council convened for
28 June in relation
to
the process of dismissal,
the
plaintiffs brought their action
(backed by their union, the Association of University Teachers) seeking to restrain
the University from proceeding
with
the dismissals on the ground that such action
would be
ulcra vires
and illegal,
as
being in flagrant breach of section XXV(2) of
the University’s statutes. When the case came before Morland
J
on 19 June, he
refused to grant an interlocutory injunction, and on
a
cross application by the
University he struck out the action
with
costs on the ground that he had no jurisdiction
to entertain
it.
Proccdurally the plantiffs
first
needed leave to appeal against the
order because
it
involved the striking out of
the
action. This was granted. Full
argument had been permitted on the application for leave to appeal
as
on the appeal
so
judgment was forthwith given on the substantive issues.
Section
XXV(
1)
of
the
University statutes provided for the removal
of
membcrs
of
the
academic staff for ‘good cause,’ but it was not suggested that there was any
good cause for the removal of any of the plaintiffs from office. Section XXV(2)
provided categorically that no member of
the
staff specified
in
(1)
(which included
the
plaintiffs) should be removed from office except for ‘good cause.’ The University
had been incorporated by Royal Charter in 1967, and Dillon
LJ
explained how section
XXV
had come to be incorporated therein.
It
had, he said, been adopted
‘in
the
light of
the
importance attachcd at that time to academic independence and the
consequent need for security of tenure. It was easy to remember how academic staff
had been treated by the authorities in Nazi Germany and other totalitarian states.’
However, he continued, ‘in the changed political climate engendered by
the
present
Government and under the pressures of the Government’s financial policies
in
relation
to the Universities, priorities have changed and
the
fashionable watch-cries now
are
all
for “economy” and “managerial interests.” In the pursuit of “managerial
interests” the old priorities, and the old memories and fears are forgotten.’
Having thus sketched in
thc
background, Dillon LJ turned to the 1988 Act which
he referred to
as
‘a
form of compromise.’ As is well known, the Act,
in
s
202,
created
a
body of Commissioners known
as
the University Commissioners, to whom
various functions were assigned
in
relation to ‘qualifying institutions’
as
defined
*Professor
of
Equity, Univcrsity of Buckingham.
I
am indebted
to
the Secretary-Registrar
of
the Univcrsity of
Astoil
for providing
me
with a copy
of
thc
Dctcrmination of Sir Nicholas Browne-Wilkinson in the exercise
of
the visitatorial jurisdiction, and
for
informing me
of
thc subsequcnt decision of the University Council.
137

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