Tenure

This is an aspect of the employment rights of university academics (and other in a similar position), and is usually understood to mean that it is quite hard, or perhaps even impossible, to remove them from their employment. In popular culture, it has connotations of “jobs for life” and of allowing its holders to be indifferent to their employers’ attitudes on most questions. (See for example You can’t fire me; I’ve got tenure!; A Tenured Professor; Tenure, the Movie.)

Internationally, academic tenure has to be understood against the background of employment rights generally. In the US, where most employees serve “at will” (i.e. are subject to instant dismissal) or have renewable contracts, “tenure” implies a very substantial right indeed, whereby the employee is removable only on clear proof of serious misconduct. Tenure is accordingly a privilege that must be hard fought for, often against considerable competition. European employment law is more generous to employees generally, with a few years’ service giving a right to protection against unfair dismissals. In that context, it is taken for granted that academics (and others) are often protected against allegations of misconduct, and “tenure” usually refers to a right not to be made redundant. (“Redundancy” means a dismissal not because the employee is failing to do the job but because the job no longer needs to be done; workers made redundant are usually entitled to a severance payment based on length of service.) Indeed, the introduction of academic redundancy in the UK in the late 1980s is colloquially referred to as the “abolition of tenure”, even though UK academics retain substantial employment protection.

In Ireland, the background is that employment in universities is treated as employment in the public service. Public sector employees are relatively secure, and compulsory redundancy is unheard of – a position likely to come under strain in current circumstances, but which will no doubt be strongly defended. Whether Irish academics have rights going beyond those of their other public sector colleagues is discussed below.

Whether “tenure” is justified is a question much debated. Such debates typically assume (i) that general employment law is fair, or at least is not the topic under discussion, and (ii) that academics are asking for an exception to this (presumptively fair) arrangement. Unsurprisingly, therefore, the arguments for tenure seem fairly weak. (For a fuller treatment see Academic Tenure and Freedom: Ethical Issues.) Roughly:

• Tenure gives freedom for radically new ideas or other forms of intellectual dissent. Freedom of speech and thought, and job security, enable academics to pour their energies into their work rather than wasting time on infighting with colleagues or university management.
• The carrot of tenure encourages the sustained and dedicated pursuit of intellectual excellence, even in obscure or unfashionable areas; and the right to remain at an institution for life is a powerful incentive towards improving it. Tenure therefore benefits the individuals working at universities, and also their employers, who would otherwise have to find different (and probably more expensive) ways of motivating their workforce.

No doubt there is something in both of these points, but there is a risk of over-statement. As Wikipedia comments (copied 14 February 2009):

Although it is claimed that tenure is granted to secure academic freedom for faculty, relatively few tenured professors dissent from prevailing opinion, openly disagree with authorities of any sort, or spend time researching unfashionable topics. Those who do dissent may find they are denied tenure in the first place.

Evaluation of tenure in the abstract is perhaps not really meaningful. Whether the issue is intellectual freedom or career incentives for academics, then it is only one small part of a very broad picture, other parts being the general intellectual climate, the resources available for carrying out innovative research, and the availability of promotion. At the moment, and given a wide public perception that academics cannot be sacked even for complete non-performance (and public ignorance as to how such non-performance occurs), it is an open question whether “tenure” does more good than harm.

As to the law in Ireland, the starting point will usually be the employee’s rights in ordinary employment law, including the right not to be unfairly dismissed and (in some situations) not to be discriminated against by reference to a comparable employee. There are in addition two other sources of rights, peculiar to universities:

1. By the Universities Act, 1997, s 25(6), “a university may suspend or dismiss any employee but only in accordance with procedures, and subject to any conditions, specified in a statute made following consultation through normal industrial relations structures operating in the university with recognised staff associations or trade unions”. Accordingly, employees can insist on adherence to the terms of their institution’s statutes. Such statutes invariably provide for dismissal for cause, but typically do not provide for other cases, such as redundancy. So for example UCD’s statutes (6.20.3) provide that:
   

   Subject to the [Universities] Act, Professors and Lecturers with tenure shall be officers of the University and, unless otherwise specified in a statute, shall enjoy tenure of office until they reach the age of 65 years unless they retire or resign, die, are dismissed in accordance with the procedures established by this statute or become incapable by reason of physical or mental infirmity from continuing in office

   and so compulsary redundancy is impliedly ruled out.

   It has been argued that “specified in a statute” should not be read literally, and it is enough if the statute gives a general indication of the procedures to be followed, fleshed out by regulations elsewhere. This argument was however rejected by Gilligan J in the Fanning case, who commented:

   … the reality of the situation is that what is at stake is the suspension and/or dismissal of the plaintiff and it is clear that the Oireachtas considered it appropriate that in a matter of such importance the suspension/ dismissal procedure was to be specified in a Statute and was to be clearly defined or identified and this was a procedure which was well established historically.

   Further, by providing that the procedure should be specified in a statute, it is implicit that there should in fact be a procedure. In the Cahill case ([2007] IEHC 20), where university statute provided (in effect) that the university’s president could dismiss employees on notice, Clarke J. did not accept that this was a ‘procedure’. “It seems to me that such a construction would make a nonsense of the use of the term ‘procedure’. A unilateral decision can hardly be a procedure.” This obviously goes beyond merely insisting that the university commit itself to a certain process for dismissals (the primary purpose of the rule), and places limits on what processes may be adopted. (This point was left open on appeal.)

   University statutes can of course be changed. But this is neither a simple nor a private process. Further, any such change cannot affect the rights of employees who are still in the same post as they occupied on 16 June 1997, when the Act came into force (see s 25(8) and Fanning v. UCC [2008] IESC 59).

2. The Universities Act, 1997, s 25(6) adds that the statutory procedures for dismissal “shall provide for the tenure of officers”; “officers” include any “permanent, full-time member of the academic staff of the university” (s 3(1)). This sounds substantial. But the Act does not define “tenure”, and its precise meaning in context is not obvious.A number of positions could in principle be adopted on this issue – at the one extreme, an academic might argue that “tenure” means a job for life regardless of the circumstances – at the other, a university might argue that their obligation is only to define the extent of their academics’ rights, whatever they are, and that the word “tenure” says nothing about the extent of those rights. Indications are that some middle course between the two will be chosen, but precisely where the line is to be drawn has not yet emerged. These issues were skirted in the Fanning litigation ([2005] IEHC 264 and [2008] IESC 59); the case ultimately turned on the special position of pre-1997 academics. The closest we have to an authoritative pronouncement is in the ongoing Cahill litigation.Cahill v. DCU involved the dismissal of an established academic, following a difference of opinion between himself and the university’s president in relation to an offer of alternative employment. The relevant university statute (which set out a detailed disciplinary procedure) also provided that “the tenure of officers of the University shall be such tenure as is conferred on each such officer in his or her individual contract with the University” (statute 3, 5.1); the plaintiff’s contract, which was standard for that institution, allowed for termination by the president on three months’ notice. The main issue in the case was whether “tenure” was sufficiently provided for as the Universities Act requires.The judgment of Clarke J. ([2007] IEHC 20) is reluctant to give a firm meaning to “tenure”. His primary ground for deciding in favour of the plaintiff was a lack of “procedures” (as explained above). He was however clear in rejecting the more extreme views. The university is legally responsible for settling the terms and conditions of its employees, and so evidently has a measure of discretion with regard to the length of service; the broader views of “tenure” as jobs-for-life therefore cannot be right. But equally, “tenure” was evidently meant to confer rights of some sort on employees: “the Oireachtas must have used the term ‘tenure’ to mean something more than simply delineating terms and conditions as to the length of employment”. This was enough to resolve the case in front of him, as the defendant’s position was that the plaintiff had no security of tenure at all beyond three months. Clearly the plaintiff was entitled to more than that, and so should win the case, without a ruling as to precisely how far his rights extend.
   

   I am, therefore, satisfied that the term ‘tenure’ brings with it an obligation to give a greater degree of permanency to the status of officers of a university, than would be the case in circumstances where, as a matter of contract, such officers could have their contract terminated on three months notice. I am, therefore, also satisfied that the purported specification by DCU in Statute No. 3 of tenure by reference to contracts of employment which, on the facts, provide for termination on three months notice, was an invalid exercise of the undoubted entitlement of the university to specify tenure. Precisely what limitations there may be on removal from office by virtue of the meaning of the term ‘tenure’ is a matter which I will leave for consideration to a case in which the issue specifically arises.

   Clarke J. said little else on the topic, though there is a passage which (now that redundancy is under national consideration) might be thought a little ominous from the employees’ perspective:

   There is a clear obligation on those charged with running a university to operate the university in both an efficient manner and for the purposes of furthering the objects of the university both as specified in its own internal constitutional documentation and in the provisions of the relevant sections of the 1997 Act (such as ss 12 and 13). Similarly the university has financial obligations relating to numbers and type of staff under the 1997 Act and not least under s 25 itself. It may well be that the statutes of a university could properly provide for the circumstances in which established offices might have to be extinguished, amalgamated, or otherwise dealt with in a way which could effect the holders of those offices. It does not appear to me to be the case that such provisions, even were they to affect office holders, could be said to be in breach of the ‘tenure’ of such office holders provided that the circumstances which might lead to the office holder being so affected were specified in a statute of the university.

   He added, however, that even if this were right, the relevant procedures would have to be specified properly in a university statute.

   This pronouncement of Clarke J. is somewhat weakened by the neglect of this issue on appeal: the Supreme Court affirmed his judgment on quite different grounds. Nonetheless, it is cogently argued and stands as an authority of sorts, albeit not the firmest of sorts.

As with so many issues in Irish public life at the moment, we wait for new developments with a certain degree of apprehension. Individual universities are no doubt considering their legal options with regard to compulsory dismissals, and speculating on whether such decisions will be forced on them or (as seems more likely) made for them by central government as part of a wider public employment settlement. Watch this space.

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