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External Activities within Current Exclusivity Agreement: Guidelines for Management

 

External Activities within Current Exclusivity Agreement: Guidelines for Management|pdf(106 kb)

 

 

Go to a specific section:

1. General Background to the National Agreement|

2. Exclusivity Implementation Considerations|

3. Regulations for Giving Authority to Undertake External Work|

4. Previous Commitments|

5. Disputes|

6. Review|

Appendix A - Regulations for Staff with Authority to Act as Independent External Consultants| pdf(16 kb)

Application for Request to Undertake External Work to be Conducted Independently of the University| pdf(29 kb)

 

 

1. General Background to the National Agreement

As a result of the 1990/91 National Agreement on pay, terms and conditions of service of the Polytechnics and Colleges National Negotiating Committee (PCNNC) Lecturers' Common Interest Group, certain arrangements concerning Exclusivity and Intellectual Property Rights need to be formalised within the University. This paper reviews the position and proposes a framework to provide effective management of the arrangements required to implement the national agreement accepted by the Human Resources Committee of the Board of Governors of the University.

The academic staff of the University are all fully aware of the contractual position having received three documents which kept them briefed on the position at different stages as the national negotiations proceeded. The three documents are:

• The ACAS Report which set out a draft new contract for consideration at national level.

• The Chief Executive and Vice-Chancellor's letter of 29th October 1990 (following discussions at Faculty level on the draft 'ACAS contract').

• The Chief Executive and Vice-Chancellor's letter of 18th February 1991 formally notifying all academic staff that the Board of Governors of the University had accepted the PCNNC recommendations.

Finally, to complete the overall picture, the Heads of Department, were provided with interim advice by the Chief Executive and Vice-Chancellor on 18th February 1991, on the broad methodology which the University was proposing to adopt to implement the national agreement.

 

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2. Exclusivity Implementation Considerations

The first point from the national agreement which bears repeating by way of emphasis, is that the University wishes to encourage its staff to engage in external work which is supportive of their professional responsibilities.

However, the University itself has certain responsibilities in managing its affairs, and one of the provisions of the national agreement provides an obligation for staff to seek authority from the University before undertaking external work.

This not only ensures that the University has a full and complete picture of the professional activity of its staff but also provides for the possibility that in certain circumstances permission to undertake particular activities by staff may need to be withheld. The University will not wish to be unduly restrictive and certainly would not wish to establish a cumbersome bureaucratic process to deal with routine requests for permission. Nevertheless, the University needs to establish a straightforward process to manage its obligations, with the majority of such decisions being made at Department level wherever possible, albeit monitored centrally to ensure a consistent approach across the University and reviewed from time to time in consultation with the recognized trades unions.

Before outlining a system for the management of agreements for academic staff to undertake external work, it is useful to consider the areas of legitimate concern to the University. Broadly three areas of such concern are readily discernible:

• Effect on performance of principal employment contract.

• Possible conflict with the interests of the University.

• Protection of the University's legal liabilities.

• To develop each concern in turn.

2.1 Effect on Performance of Principal Contract

Clearly, the University would wish to ensure before granting authority to a member of staff to undertake additional external work that such activities will not be likely to interfere with the performance of the staff member in respect of their principal professional duties for which they have a contract with the University.

This judgment, provided that absolutely no University equipment or other resources are to be used for the proposed work, is likely to be best made by Heads of Department. Heads may need to seek advice where activities may have implications beyond their Department, or in unusual circumstances, but in normal circumstances, a system for approvals within a University framework at Head of Department level is likely to be most effective. Record keeping of such approvals at this level will avoid unnecessary paperwork and correspondence, as well as ensuring that Heads of Department know the commitments of their staff more fully.

If Heads of Department are to exercise this responsibility, it is evident that certain simple procedures will need to be put into place, and applied consistently, to assist them in monitoring the impact of external commitments upon the substantive employment responsibilities of staff, and such a set of procedures is presented later in this document.

Although the national agreement explicitly exempts staff from a requirement to inform the University before they undertake certain specified academic external commitments, staff should provide details of such specific academic commitments to the University. If this information is provided to the appropriate Head of Department, this will ensure that he/she has a full and current picture of the academic development and achievements of the staff member concerned. Staff will naturally be sensitive to the dangers of over-committing themselves to such activities to the detriment of their principal professional duties, especially if the external commitments do not contribute significantly to the on-going professional development of the individual.

Staff are not normally required to declare casual work (work undertaken outside of the University and unrelated to the professional activities and standing of the member of staff concerned, or the work and interests of the University or its associated companies). However, all staff are expected not to engage in casual work in such a manner that it undermines their ability to fulfil their primary employment contract. Given this definition of "casual work", it is understood that such activities will not be undertaken in conflict or in competition with University interests. Clearly, if staff are in any doubt about whether any external activity should be declared or not, they should seek advice from their respective Head of Department.

It should be noted that for the purpose of this agreement, external work does not include reasonable involvement in political, religious, community or recreational activities, provided that such activities do not impact on the ability of staff to fulfil their primary employment contracts.

2.2  Possible Conflict with the Interests of the University

In certain circumstances, proposed external work may conflict with the interests of the University. It is to be hoped that such occasions will be rare, but the national agreement provides for the University at its sole discretion to require a member of staff not to undertake work which is judged to compete or conflict with the interests of the University. Such a refusal by the University will not be made unreasonably, will be subject to consultation with the member of staff concerned and will be accompanied by written reasons for the refusal.

One kind of circumstance which can be envisaged where authority to undertake external work might be refused would be where a conflict of commercial interest is apparent. For example, the University would not wish to encourage a member of staff to engage in work with an external company or another institution which was in direct competition with the University's own activities. Another would be where the proposed work is judged to be to the detriment of the University's good name and reputation. Clearly, one would not anticipate staff members wishing to undertake external activities which would in any way prejudice the good name and reputation of the University, but the judgement on this aspect must finally rest with the University.

2.3  Protection of the University's Legal Liabilities

The University wishes to ensure that it does not incur legal liability in respect of the activities of members of staff who are engaging in external activities "independently", but with the permission of the University.

This is particularly important because many outside bodies find it very difficult to understand that someone known to be a research worker, lecturer or professor can in fact act independently of the place where they are employed, not least because one of the main reasons that they were engaged as a consultant in the first place may be that they are a research worker, lecturer or professor at an institution of repute.

It is also a common experience that many academic members of staff do not fully appreciate the contractual risks associated with consultancy work (or the giving of casual advice), and grossly under-estimate the potential financial liability to which they expose themselves when undertaking consultancy work. In particular, it is not usually appreciated that legal liability could be incurred whether or not an external body pays for advice and that such liability can be incurred not only in the case of a full consultancy arrangement but also when casual advice is given over the telephone. One does not wish to over emphasise these risks, but the University needs to ensure that it does not expose itself to liabilities for activities over which it has no control and for which it receives no financial benefit.

The legal position is that the University is liable for members of staff acting within the scope of their principal employment and also for staff working for outside bodies with the permission of the University. Thus, it is perfectly feasible for a client of a member of staff of the University (acting with the permission of the University) to seek satisfaction from the University in the event that the contract between the staff member and his/her client is not satisfactorily completed. The University needs to minimise such risk through the adoption of standard procedures guided by best practice from institutions already operating such arrangements.

In summary, if a member of staff wishes to work as an independent external consultant outside of the University, or its associated trading agencies, then steps must be taken to ensure that a complete and unambiguous separation is made between the proposed activities and the University, to the satisfaction of the University, as outlined below.

In cases where permission has been granted by the University to a staff member to undertake external work on a wholly independent external basis, the following practices should be adopted to protect properly the University's interests:

a. The staff member must emphasise in writing to any external client that he/she is acting as an independent consultant in his/her own right (and therefore by implication not as an agent of the University). Written evidence that such a statement has been made to clients should be available on demand by appropriate senior officers of the University (a relevant Head of Department, Dean or a member of the Senior Executive (or his/her specific nominee)). A suitable form of words to use might be "I would wish to emphasise that in undertaking this work, I am acting as an independent consultant acting in a private capacity".

b. No University facilities whatsoever shall be used by a staff member in furtherance or promotion of external work including the use of the telephone. The disclosure of a University telephone number as a contact number for private and independent external work is totally unacceptable since this connects the University with the private and independent activity.

c. The University's name is not to be used in connection with the "private" external activity, either directly or indirectly. Clearly, the use of University headed note paper or the use of the University postal or telephone system cannot be countenanced; but it is also important to ensure that letters between the staff member acting "independently" and the client do not imply any connection between the University and the work to be undertaken. Although there is no difficulty in a potential client knowing that a staff member has a principal contract of employment at De Montfort University, no direct link to any post in the University should be made in correspondence, (for example by signing a letter as "Senior Lecturer in Applied Psycho-Surgery").

d. When seeking authority to undertake independent external professional work, evidence must be presented to the appropriate Head of Department of the existence of a current and suitable professional indemnity insurance policy to cover the proposed work by the staff member. The details of this policy will be entered into the authority records held by the Head of Department. This practice has been successfully implemented by other institutions of Higher Education and guards against legal complications for the University resulting from external independent work conducted by staff members.

Evidence of such an existing policy will be required in all cases, even if the staff member concerned assesses that the risks involved are low - if the risks involved are small then the assessment of the insurance company should reflect such a situation and the policy premium will also be small. It is not reasonable for the University to put itself at financial risk for activities for which it has no operational responsibility, over which it has no control, and in which it has no financial interest. Members of staff wishing to act as independent external consultants must be prepared to make appropriate arrangements to satisfy the University that it faces no liability from such activities.

If staff need to use University facilities to undertake external work, or they do not wish to carry out their own professional indemnity insurance cover, arrangements can be made with the approval of the Dean for the work to be handled through DMEL, which is the general trading company of the University.

 

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3. Regulations for Giving Authority to Undertake External Work

Taking all the above considerations into account, regulations are provided to implement the National Agreement on exclusivity. The regulations are designed to protect the interests of the University, whilst encouraging and facilitating staff members wishing to undertake external work in the furtherance of their professional standing. The management of the proposed procedures is primarily to be conducted at Department level. The regulations are:

3.1 Before a member of staff enters into any obligations to undertake any external work, including consultancy, he/she must seek authority from their Head of Department. However, by way of exception to this requirement, formal authority is not required for the following academic activities:

• External examining.

• Acting as an assessor.

• The production of scholarly works such as books, articles and papers.

• Any other activity specified in the Policies and Procedures Handbook as not coming within this requirement.

Staff should still provide full details of such commitments to the appropriate Head of Department. Since it is clear that staff have a prime responsibility to be able to meet their obligations to their main employment contract with the University, staff will naturally be sensitive to the dangers of over-committing themselves to such activities to the detriment of their principal professional duties, especially if the external commitments do not contribute significantly to the on-going professional development of the individual. The University reserves the right to counsel staff to withdraw from external academic commitments if it appears that the performance of the staff member in respect of the principal employment contract is likely to be affected detrimentally, or the work conflicts with the interests of the University.

3.2 The University, normally through the Head of Department, will then decide (within 5 working days or whatever other period may be agreed as being reasonable in all the circumstances) if that work will:

a. Interfere with the performance of the staff member's professional responsibilities.

b. Compete or conflict with the interests of the University.

In which case the University may at its sole discretion require the staff member not to undertake the work, or apply certain conditions to protect its interests; such requirements will not be made unreasonably, will be subject to consultation with the staff member concerned, and, if made, will be accompanied by full written reasons for them.

3.3 The Head of Department in considering the application against the criteria in clause (3.2)|, may need to consult outside the Department:

a. Where any Department, Faculty or University resources may be required to undertake a particular proposed activity, this will need to be referred to the Head of Faculty who in turn will need to refer it onto DMEL in the event of approval, since the provision of University resources implies trading activity and this is conducted through the University's general trading company. University, Department or Faculty resources will not be provided to staff members acting as independent external consultants.

b. Where an activity may be against the interests of the University overall rather than just the Department: this should be referred to the appropriate Pro Vice-Chancellor.

c. Where the Head of Department judges that circumstances of a case are unusual enough that a precedent might be set which could have an effect on other Departments: this should be referred to the Dean in the first instance who will consult with the appropriate Pro Vice-Chancellor if necessary.

It may be the case that the proposed work can be agreed by the University subject to certain conditions which ensure that the University's interests are protected. In this case the conditions relating to the approval will be clearly stated in writing when approval is given by the Head of Department.

3.4 The Head of Department should either refer the member of staff to DMEL, (in the event that Department/Faculty/University resources are required for the work), or if it is proposed that the work is to be conducted independently of the University, without drawing on any of its resources, and if authority can be granted without conflicting with conditions (3.2 a)| or (3.2 b)|, the following steps need to be taken:

a. The member of staff should be required to produce evidence of a professional indemnity insurance policy valid for the appropriate period covering the type of work to be undertaken. There may be exceptional circumstances where this condition can be waived, but such a waiver should only be considered in clearly exceptional circumstances - in cases of doubt the appropriate Pro Vice-Chancellor can be consulted.

b. The general regulations for staff acting as independent external consultants (Appendix A|pdf(16 kb) should be provided to the individual concerned.

c. Details of the authority given should be logged (as outlined below)| and written authority, with any specific conditions (see section 3.2)| provided to the staff member in the approved manner.

3.5 Logging the requests and decisions: The following information must be recorded, and maintained by each Head of Department using standard proformas, for each case:

a. Name of staff member.

b. Date of request for authority.

c. Description of work to be undertaken including financial scale for professional indemnity insurance purposes.

d. Client.

e. Estimated time to be committed (total hours/days, and period of duration).

f. Sight of professional indemnity insurance policy - insurance company name, policy number, amount of cover and date of expiry of policy.

g. Date of authority given.

h. Signature of Head of Department.

i. Signature of staff member.

j. Reasons for refusal, if appropriate, and date of decision communicated to staff member.

The information logged with the Head of Department will remain confidential to appropriate senior officers of the University (relevant Head of Department, relevant Dean, members of the Senior Executive or their specific nominees). These officers will be required to respect the nature of this information. In particular, information provided in (c) to (e)| will be regarded as "commercially confidential", and must not be used by the senior officers in any way which would assist themselves, or any other individual, to develop any personal or independent external activity of a consultancy nature.

3.6 If the University decides to require the member of staff not to undertake the work proposed, the Head of Department will inform the staff member concerned (within 5 working days, or whatever other period may be agreed as reasonable in all the circumstances) in writing, giving reasons why the authority to undertake the proposed work is not being given.

For staff on academic salary scales and conditions of service working in non-faculty cost centres, authorisation for external work will be given by the Head of Cost Centre or his/her nominee.

 

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4. Previous Commitments

At the time of implementation of these exclusivity arrangements, certain members of staff may be involved in on-going consultancy or other external activities which are being conducted outside the University, or one of its agencies. These activities should be declared as soon as practicable to the appropriate Head of Department and formally logged, and steps must then be taken to bring these activities within the protocols outlined above. The University will wish to be helpful to staff who are in this interim position, whilst also being concerned about protecting its own position, but may in certain circumstances require staff to withdraw from existing external activities for good reason, within a reasonable time period in the circumstances and having regard to the legal position. Such a requirement will not be unreasonably made and will be lodged with the staff member concerned with written reasons stating why the decision requiring the cessation of existing arrangements has been made.

 

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5. Disputes

The University's standard grievance and disciplinary arrangements will apply in the event of any disputes arising from the implementation of these procedures, or breaches of the regulations respectively.

 

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6. Review

The Chief Executive & Vice-Chancellor agreed there should be a review of the indemnity clause should case law determine the need to do so.

 

 

Appendix A - Regulations for Staff with Authority to Act as Independent External Consultants| pdf(16 kb)

 

Application for Request to Undertake External Work to be Conducted Independently of the University| pdf(29 kb)

 

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