Court resilience plan

Introduction

1. Any governing body of any institution may find itself in a situation where normal executive management of that institution is disrupted, or where the governing body itself is unable to discharge its responsibilities in accordance with its governing instruments or its standing orders and protocols. For a university, given its public-facing role, such a situation requires swift and decisive handling on the one hand and delicate and discreet handling on the other to ensure that the university can continue to operate effectively without losing public confidence.
2. Such situations can arise for a number of reasons, all of which are very rare in the normal prosecution of business. These may include: sudden death, ill-health or incapacity of the Principal and/or other members of the executive group; irreconcilable differences between the executive and the governing body; governance failings of the Court or its individual members or of members of the executive group, such that the proper functioning of the university is jeopardised; conflicts of interest, whether declared or not, calling into question the integrity of members of the governing body or of the executive group or preventing those members from carrying out their functions; ‘Act of God’ or catastrophic failure of the university infrastructure and failure of the disaster recovery and business continuity plans; and potentially, as a result of any of these, interventions by the Scottish Funding Council or the Scottish Government.
3. Under such circumstances the University is likely to come under intense scrutiny from internal and external stakeholders, the general public and the media. In some cases, the actions and decisions it takes may be subject to later inquiry or review, including through processes external to the institution.
4. The Court of the University of Dundee has approved this plan as a framework for decision- making in any situation which prevents, endangers or is likely to prevent or endanger the proper operate in the event of vacancies in key positions; the protocol to be followed in any situation where it is advisable that any member or members of the executive group or the Court should be suspended from their role; how those responsible for decision-making can access independent advice when that advice cannot be received through the usual channels; and what issues need to be considered when formulating a communications plan to support these actions.
5. All situations of this kind will be unique, and no single protocol is likely to be fully appropriate to any particular circumstance, so this plan provides guidance only and will be reviewed regularly to ensure it is still fit for purpose and can respond to experience from other institutions as necessary, whether within or beyond the HE sector.

6. This plan should be considered as part of a range of instruments, procedures and guidance which may be relevant to individual situations affecting the governance arrangements or senior management of the University. Those that members of Court may find particularly useful are set out in Annex 1.

   Authority to Act

7. As set out in the Charter, the Court is the supreme decision-making body of the University and it delegates, in accordance with the Statutes, certain decisions to committees and individuals across the University. The Senate is the prime academic decision-making body, and whilst it generally operates autonomously from the Court, it technically remains subordinate to it.
8. A decision on whether this plan is to be activated rests with the Court, in discussion with and on the advice of the Secretary of the University. Where the Secretary is unable to advise the Court, the Court will seek advice from alternative sources as set out below. The plan may be activated by the Chairperson of Court alone (‘the Chair’) or by an emergency committee as provided for below.
9. In exercising its functions, the Court is advised by the Secretary to the University. This relationship is crucial during any situation that appears to fall within the scope of this plan. If this relationship cannot be maintained (for example because the Secretary is incapacitated) or is itself called into question as a result of the situation that arises, the Court will need to be able to access alternative forms of advice to ensure it acts appropriately. Where the relationship is stable and unaffected by the situation, the Secretary will be responsible for procuring any additional advice the Court believes it needs, over and above that provided by the Secretary.
10. Where the Secretary is unable to act, the Court will need to determine who should provide or procure such advice and support. In so doing, the Court may identify another member of staff of the University (for example the Director of Academic & Corporate Governance) to act as its ‘secretary’, fulfilling the responsibilities of the role for the purpose of dealing with the situation that arises. This person will be required to act independently and autonomously in support of the Court, and must not be any person who is, might be or might be seen to be implicated in the situation that has arisen. Depending on the nature of the issue that has arisen, this person could be another member of the executive group, or it could be someone outside it of appropriate seniority and standing who has a good understanding of governance, administrative, or legal matters. That individual may seek external advice and guidance, for example from an experienced Secretary to Court of another university or, for example, senior officers of the Association of Heads of University Administration (AHUA). In extreme circumstances, the Court may wish to consider appointing an external adviser, but only where no suitable person from within the University can be identified.
11. In any situation that arises, the Court will need to consider to what extent powers and responsibilities ordinarily delegated to individuals within the University should now be reserved to the Court or delegated to other individuals. The Court has the authority to reserve matters to itself and delegate matters on the advice of the Secretary or of the person to whom the responsibilities of the Secretary have been transferred.
12. It is unlikely that any situation requiring the execution of this plan will fall neatly within the cycle of Court meetings such that the issue can be adequately debated and discussed without calling an emergency meeting. Statute 9 determines how an emergency meeting of Court can be called, and even this may not be sufficiently quick to enable early discussion of the matter in hand. The Role & Responsibilities of the Chair of Court provide for emergency matters to be dealt with by the Chair between meetings, on the understanding that they are reported to the next meeting of the Court. This may be appropriate where the matter, despite being of concern, is relatively straightforward, not too serious and/or easily addressed, but where this is not the case and having taken any emergency action, the Chair will require to consult with members of the Court in as expedient a way as possible.
13. To facilitate this, the Chair may convene an emergency committee. The Chair should communicate their intention to convene this committee digitally to all members of Court, setting out briefly the circumstances, insofar as they can be communicated, and the composition of the emergency committee. The normal composition shall be: Chair and/or Deputy Chair; any two of: Conveners of the Finance & Policy Committee, Audit Committee, People & OD Committee and the Remuneration Committee; a staff member of Court and a student member of Court. The establishment of an emergency committee does not necessarily dispense with the requirement to call an emergency meeting of the Court. Indeed, the emergency committee should take great care to ensure it does not exceed its remit or take decisions that may not be consistent with those likely to be taken by the Court as a whole. Keeping as full a communication channel with members of the Court as possible will help to identify when Court will need to meet as a full body.

14. For the avoidance of doubt, the Chair has the authority to act in respect of any situation falling within the terms of this plan. It is the normal expectation however that they would consult with senior Court members, seek the advice of officers and would refrain from involvement in operational matters. All decisions must be reported to Court.

    Failure of Court itself or any of its members

15. Statute 9 provides for the suspension and removal from office of members of Court, including its Chair, on the grounds of serious personal misconduct, inability to exercise the functions of Chairperson or of membership of the Court, abuse of the rights and privileges of membership of Court, bringing the University into disrepute, persistent absenteeism, medical incapacity or legal impediment. Where any member of Court believes there is cause for concern, that member should inform the Secretary.
16. Statute 13 provides that no act of Court can be deemed invalid by reason only of a vacancy in the membership of the body. The Court can therefore continue to exercise its duties and responsibilities so long as it can make quorate decisions. The quorum of Court is seven members.
17. In the event that the Chairperson of Court is incapacitated, unable to act in the role or has been suspended or removed from office, the Deputy Chairperson will assume all the duties and responsibilities of the Chairperson. In the event that the Deputy Chairperson is likewise incapacitated or unable to act, the Court will elect a member from amongst its members who are not students or staff of the University to assume all the duties and responsibilities of the Chairperson.
18. Since, under powers exercised by the Scottish ministers under the Post-16 Education (Scotland) Act 2013, it has become a condition of funding from the Scottish Funding Council (SFC) that universities are required to comply with any principles of governance which appear to the SFC to constitute good practice, if follows that, in a situation where the governance of the University may be put into jeopardy, an open dialogue should be initiated with the SFC. Such a dialogue should usually be initiated by the Secretary.

19. For the avoidance of doubt, on the specific issue of quoracy, the University must initiate a dialogue with the SFC in any situation where the Court has been reduced to fewer than seven members, or where such a reduction has become possible or likely. In practice, such a reduction in the number of Court members is likely to be the consequence of other failings that will already have been subject to this plan, and for which the SFC’s advice may already have been sought.

    Identifying Governance or Management Failures

20. It is incumbent upon all members of the Court to be alert to situations where good governance may be being undermined. All members of Court are themselves bound by a Code of Conduct which includes adherence to the nine principles of public life in Scotland (see Annex). All members of staff alongside members of Court are also subject to the requirements of the University’s Conflicts of Interest Policy, the Anti-bribery Policy, the Policy Statement on Fraud and the Gifts and Hospitality Policy. All are also required to submit a declaration of interests on at least an annual basis.
21. Failures can arise from non-compliance with these policies, or also from the inappropriate application of processes, from decisions being taken outside the schedule of delegation, or from wilful acts to circumvent normal procedures or delegation routes.
22. Given that governance and management is to a large degree affected by personal relationships and interactions, there remains the risk that an individual’s actions may become influenced by those relationships, particularly where they have broken down, or conversely where they are particularly close. In these situations, there can be a risk of coalition building or collusion in the prosecution of decision-making procedures, and this can take place both within the management sphere or across the management/governance interface. It is important that all actual or potential conflicts of interest that might emerge as a result of such relationships are declared appropriately so that they can be effectively managed to avoid any perception of collusion or conflict.
23. A series of relationships are of particular importance in this regard: the Principal and the Chair of Court; the Chair of Court and the University Secretary; the Chair of Court and the Deputy Chair of Court; the Principal and the University Secretary; and the Principal and other members of the UEG. These relationships need to pay particular attention to the potential for conflicts of interest or coalition building, or the perception of them, and should take active steps to ensure objectivity and transparency. Given the individual importance of these relationships to the effective functioning of the interface between executive management and governance, there is a risk, in the event that a cause for concern is raised against any single individual, that the partners in these relationships may come under closer scrutiny. Depending on the nature of the concern raised, consideration may need to be given to ensuring any subsequent process takes account of the risk of potential bias. This may mean the exclusion of individuals from that process. This must however be balanced against normal and expected line management responsibilities and working relationships.

24. In the event that there is a cause for concern around the members of the UEG, members of Court should consult with the Chair of Court (or with the Deputy Chair, in the event that the Chair may be involved) so that appropriate action can be considered and taken. Members of Court and members of staff may also avail themselves of the University’s Whistleblowing Policy.

    The Disciplinary Procedure and Members of the University Executive Group (UEG)

25. The University’s Disciplinary Procedure for staff is available online at: Staff support - disciplinary and grievance | University of Dundee, UK. It applies to all staff of the University, including the Principal, for whom the procedure outlines specific arrangements.
26. For the avoidance of doubt, and where there appears to be serious misconduct on the part of the Principal or a risk to property or other people, the Chairperson on the advice of the Secretary and the Director of Human Resources & Organisational Development may consider a period of suspension for the Principal under the general terms of section 10 of the procedure. In considering whether the Principal should be suspended from their role, the Chair of Court may wish to seek appropriate legal advice and ensure there is a detailed communications plan for internal and external stakeholders. Consideration should be given as to whether the SFC or Scottish Ministers should be informed.
27. As line manager to the members of the UEG, the Principal, as any other line manager, has a role under the disciplinary procedure in respect of the suspension and dismissal of staff within the UEG. This notwithstanding, it should be noted that, alongside the Principal, the following appointments are also Court appointments: the Secretary and the Vice-Principals. Additionally, the Secretary has a separate role, under Statute 6, for providing secretarial services, including advice in relation to legal and governance matters, directly to the Court.

28. As is the case with any other member of staff, serious misconduct which may constitute a criminal offence will be reported to the relevant authorities for further investigation.

    Unexpected Vacancy in the Office of the Principal

29. In the event that the Principal is unable to carry out his or her role, whether through death, incapacity or misconduct, the Chair of Court will require to identify to what degree the role can be assumed temporarily by another member of the staff of the University. In reaching such a decision, the Chair of Court should consult appropriately with the remaining members of the UEG and with members of the Court as necessary. An interim appointment to the role of Principal remains a Court appointment.
30. Where the vacancy is permanent, i.e. that it is not subject to recovery from illness or the outcome of a disciplinary hearing, appeal procedure or other mechanism, a full recruitment process should be established as soon as practicable in the normal way, and consideration should be given to a temporary appointment in the interim, with due consultation as above. The terms and conditions of any temporary appointment need to be clear and transparent to Court and to the University community.
31. Where the vacancy is temporary, either as a result of temporary ill-health or incapacity or because it is contingent on the outcome of an ongoing human resources process, the Chair of Court will seek advice from other members of UEG, from the Secretary and from the Principal (if that is appropriate under the circumstances) to help identify an interim appointee. They will also consult with Court.
32. Notwithstanding the above, the nature of any incident may mean that immediate arrangements need to be put in place quickly before a more formal or consultative process can be undertaken to identify a longer-term temporary or permanent solution. Care will need to be taken in such a situation, so that an immediate and short-term solution does not become a longer-term one without a clear rationale or attention to usual recruitment processes.

33. Any interim or emergency appointee in the office of the Principal will assume all authorities and responsibilities ordinarily pertaining to that office, including in a situation where a sitting Principal has been suspended. All authorities and responsibilities shall be as provided for in the Charter, Statutes or the Schedule of Delegation & Decision-making.

    Professional Advice

34. The Standing Orders of the Court set out how the Court, and indeed how individual Court members, can request independent professional advice. The Standing Orders are available online
35. The process set out in the Standing Orders holds for any situation covered by this Plan, subject to the provisions set out above in the event that the Secretary is unable to act.

36. Members of the UEG or of the Court, who have been suspended through the relevant mechanisms (i.e. the disciplinary procedure for staff or Statute 9 for members of Court), are not entitled to seek professional advice through the University.

    Communications

37. In the event that this Plan requires to be activated, there will be an ongoing need to ensure clear communications at various stages with internal and external stakeholders. Sometimes there will be a need to keep many aspects of the situation confidential, particularly where this involves personal data or is a matter subject to the outcome of detailed investigation. According to the nature of the situation, the Principal and/or Chair of Court will require to consult with colleagues in External Relations to establish a meaningful and clear communications plan throughout the situation that has arisen.
38. In compiling such a plan, consideration needs to be given to the range of internal and external stakeholders who may have an interest in the situation and its consequences. These stakeholders will include, but not be limited to: staff; students; partners and partner institutions; politicians, local, Scottish and UK governments; the Scottish Funding Council; research councils and other funders; the public; and the press and media.

39. Communications should be clear and understandable. They should not contradict one another and they should be co-ordinated, particularly where adapted for different audiences. They should also be mindful of and anticipate future developments to avoid creating compound problems.

    Record-keeping

40. As in any crisis or business continuity scenario, it is crucially important that a full record of all decisions is maintained. This will help with reviewing the situation after the fact, but will also be necessary in the event of any external enquiry arising from the University’s handling of the situation. The Secretary, unless unable to act, shall be responsible for maintaining appropriate records of decisions taken and of the minutes of any relevant meetings of Court or other bodies. In particular, as well as formally recording decisions and actions, sufficient additional information should be noted to demonstrate the rationale for such decisions along with the nature of the discussion and range of alternative options considered.

    Welfare

41. Situations covered by the Plan are by their nature unique, and this means they will have the propensity to create new and unusual pressures for those involved. This goes for members of the UEG as well as of the Court. The Secretary, unless unable to act, shall be responsible for ensuring that staff and Court members affected by whatever situation has arisen have appropriate access to University support mechanisms, whether through counselling, mentoring or other means.

    University Court

    Date of approval: 19 November 2019

    Annex 1

    Supporting Instruments, Polices and Documents

    The University's Charter

    Sets out, amongst other things, the relationship between Court and Senate and details of what constitute Court appointments.

    1. University Statutes

       In particular, Statute 9 (The Court) which sets out the role and responsibilities of the Court as well as the procedure for suspending or dismissing members of the Court, including the Chairperson; and Statute 10 (The Senate) which sets out that body’s role and responsibilities.

    2. University Ordinances

       In particular, Ordinance 63 (Deputy Chairperson of Court), which sets out the role and responsibilities of that office; and Ordinance 65 (Appointment of the Chairperson of Court).

    3. Standing Orders and Code of Conduct for Members of the Court
    4. Anti-Bribery Policy
    5. Gifts and Hospitality Policy
    6. Conflict of Interest Policy
    7. Schedule of Delegation
    8. Policy Statement on Fraud
    9. Whistleblowing Policy (Public Interest Disclosure)
    10. Disciplinary Procedure

The procedure is relevant to all staff, including the Principal.