Employee

Employer

Anonymised Parties

A College Lecturer

A Third Level College

Representatives

Dave Curran, SIPTU

 Not represented

Act

Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00039170-001

13/08/2020

The lecturer has been employed in the college since 1985.  He works 18 hours a week, which he informed me is three quarters of a full-time job.  Part of his role involves the assessment of students’ work at the end of the bachelors’ and masters’ degree programmes.  One of the components of this assessment involves a 15-minute talk by the graduating student to the examination team.  The college describes the objective of the talk as,

“…to support students in demonstrating their achievement by contextualizing, positioning, synthesizing and connecting the elements of their work, and the place of their work in the wider world.”

As a result of Covid 19 restrictions, the college was closed on March 13th, 2020.  This grievance arises from a decision that, because of the impact of the closure on the ability of students to complete their final year projects, the assessment talks would be recorded.  At the hearing of this dispute, the lecturer said that from the end of April to early May 2020, heads of departments informed their staff that assessment talks would be recorded.  He said that various options were not taken up by management and the decision was confirmed at a meeting in his department on June 23rd, 2020.  The recorded assessments commenced on June 29th. 

A statement on the college’s website on how assessments will be carried out in the context of Covid 19 restrictions explains that the talks will involve two members of academic staff and,

“…will be recorded to enable internal and external review of the process.  This recording will not be used for any purpose except in support of the examination of work and will be destroyed in autumn 2020 following the conclusion of the assessment process.  External examiners will have access to these recordings to aid their work in ensuring the fairness and consistency of the assessment process …”

The lecturer has concerns over privacy and data protection; he objects to being recorded in the privacy of his home and he is concerned about how the college will handle the recordings.  When he did not consent to being recorded, he was removed from the examination team.  Despite his efforts, the college did not convene a meeting to address this grievance.  At the conclusion of the hearing on April 1st, 2021, the parties said that they would try to find a resolution through discussions, and it was agreed that I would not make any recommendation until after April 21st.  As the dispute has not been withdrawn, it is apparent that a resolution had not been achieved and I will proceed therefore to consider the issue and to arrive at a recommendation.

On June 25th, 2020, the lecturer sent an email to the Head of Academic Affairs, outlining his concerns about the college’s decision to record the assessment talks.  He complained that there had been no consultation with him, his colleagues or his union regarding what he considered to be a change to his terms and conditions of employment.  He objected to being recorded in his home and he was concerned about the college’s treatment of personal data. 

Grievance

The lecturer was removed from the examination team and on July 27th, 2020, his SIPTU representative sent a formal grievance to the HR department.  This is the basis of his grievance:

1.   Recording of the lecturer without his permission is a change to his terms and conditions of employment.

2.  As is the practice across the university sector, recording of lecturers performing their work can only be carried out with their consent.

3.  The lecturer said that as his home is a private space that he shares with his family, the decision to record him in his home is an infringement of his right to privacy.

4.  The assessment of the work of students in the lecturer’s department is a mandatory condition of his contract.

5.  The lecturer was the personal tutor to graduating students and wrote their interim and end of course reports but he was removed from the assessment team.  In this capacity, he was able to offer insight into the development of students’ progress during the academic year.  Removing him from the examination team was punitive and undermined the integrity of the Bachelor of Arts degree.  He said that it potentially disadvantaged his students and caused an irregularity in the examination process. 

6.  Recordings of the assessment talks was inconsistently carried out by various departments in the college; some recorded the full talk; another recorded the student but not the lecturer and some departments combined these approaches.

7.  Because of a discovery of personnel files dumped in a skip, the lecturer had no confidence in the college’s guarantee to appropriately record, store and protect personal information in a safe and secure manner.

There was no response to this grievance and on August 13th, 2020, with the 2021 academic year approaching, SIPTU submitted the matter to the WRC for adjudication, No response was forthcoming to further correspondence from SIPTU in August, September, October and December 2020 and the lecturer’s remained excluded from his department’s examination team.

The Lecturer’s Position

In his submission at the hearing, Mr Curran said that the lecturer fully recognises the unprecedented situation that Covid imposes on the college and he and his colleagues have participated in the major changes in work practices that were required.  However, it is the union’s position that it is not correct or reasonable to insist on the assessment talks being recorded and, as a result of his lack of consent, to remove him from the examination team.  The college’s policy on Covid 19 recorded learning activities states that,

“The decision to record a learning activity is at the discretion of the lecturer but must accord with guidance given under (the college’s) Academic Framework.  A learning activity that involves the delivery of structured information should be recorded (such as a lecture, demonstration and some kinds of seminar).  More openly discursive and exploratory learning events and discussion may be recorded, but in determining what is recorded, consideration should be made of the time involved in retrospective viewing and learning using recorded materials; the clarity of the content; and the interests of all participants in their actions being recorded.  When in doubt, the lecturer should consult the Head of Department and/or Head of School.

“(The college)advises that learning activities are not recorded when what is considered personal data under GDPR is being discussed, without prior consent of participants in the learning activity being given for the recording in this specific circumstance.”

It would appear from this policy that learning activities should not be recorded without the consent of the participants and that recording of learning activities is at the discretion of the lecturer. 

It is the lecturer’s contention that a filmed record of him in his home is likely to be regarded as personal data, under the provisions of the Data Protection Act 2018.  He also argues that before the decision to record the assessment talks was taken, an impact assessment should have been carried out to consider the privacy implications.

Before the Covid pandemic, assessment talks were not recorded, and Mr Curran said that the college has not explained why they must be recorded now.  The college’s policy on Alternative Assessment Guidance for Final Award Students states that the talks “will be recorded to enable internal and external review of the process.”  However, no explanation has been given about why an external review is necessary post-Covid, but not necessary in pre-Covid times.  Mr Curran complains that the policy does not differentiate between this “invasive” method and other options that could have been explored.

Different schools and departments in the college have taken different approaches to the assessment talks; some record the full assessment and others just the student’s statements; in another department, both methods are used.  This would appear to contradict the response to the lecturer on June 29th, 2020 from the Head of Academic Affairs in which she referred to the need for a consistent approach to all the students.

Setting out his position on this matter, the lecturer said that there are consequences from removing him from the assessment panel; if he is seen not to be one of the assessors, students may decide that it is not in their interest to have him as a tutor.  He said that it is common knowledge in the college that he was removed, and that this has damaged his reputation.  He asked what the purpose of the recording is?  It is not part of the assessment, but it appears that the college has decided that it is required.

The lecturer said that recording him in his home is an infringement of his privacy and that the college must have his permission before any such recording is carried out.  He said that he struggles to trust the college’s ability to manage recorded files.

Regarding the stated purpose of the recording, the lecturer said that it appears to be partly to support the external examiner.  He said it could also be used to assess a lecturer, to determine if he or she has been fair to a student.  He claimed that the recorded talk “overly influences” the external examiner and that it “muddies the waters” of their job.  He argued that there is no advantage to having a recording of the assessment and that if the examiner needed to question a student about some issue regarding their work, they could do so over a Zoom call.

Ending his submission, the lecturer said that the college has committed “a profoundly wrong thing” by removing him from his job as a member of the examination team.  For the 10 students that he wasn’t permitted to assess, he claimed that the examination process has been compromised.  He said that he wants an acknowledgement of the wrong that has been done and an apology.

The SIPTU representative who attended the hearing said that the decision to record the assessment talks was presented as a “decree” by the academic council and that some of the staff who participated did so under protest. 

Conclusion

In conclusion, Mr Curran said that the decision to insist on the full recording of the assessment talks is contrary to the college’s policy on learning activities, which provides that recording is at the discretion of the lecturer. 

No privacy assessment has taken place and there was no consultation with the lecturer and his union to explore a less invasive option regarding the assessment.

Other departments have taken a different approach, where the students are recorded but not the lecturer.

Mr Curran asked that the college withdraws its requirement for the lecturer to be recorded while he is working from home.  A more agreeable solution should be explored that is respectful of the lecturer’s concerns about privacy and data protection and he should be reinstated on the examination team for final year exams.

In “normal times” in the college, final year degree students and those completing the masters’ programme produce an exhibition to showcase their work and for assessment as part of their final examination.  In 2020, when it wasn’t possible for the students to present their work, the academic council proposed a revised approach.  This involved a recording of “a narration of practice” in which the students talked about what they had planned to produce for their exhibition.  At this narration, the assessment panel would have an opportunity to ask questions and to review the student’s intentions for their work in the final year exhibition.

At the hearing, the head of HR said a key piece of the recorded talk was that it was a facility for the external examiner to review the student’s intention and to calibrate the final year results.  It also provided evidence for any student who wished to appeal their results.  In this context, the head of HR said that the recorded talk was intended to protect the integrity of the exam process for the students, the college and the academic staff.  By the end of the 2020 academic year, the process had been used for 300 graduating students and a review had found that, in a very small number of cases, the recorded assessment was not correctly carried out.  These irregularities are being investigated.

The college director said that the process used in 2020 came about because of a need to re-think the assessment process and that the recording of the talks is not a long-term measure.  It was introduced to manage a situation where students were not able to complete their work due to the closure of the college.  She said that the revised process was agreed by all the members of the academic council and is subject to proper governance.  The director said that she accepts that there was an issue with the handling of confidential data in the past.

In the context of the closure of the college, students must be allowed to graduate and to get a final mark for their efforts.  The college must have in place a robust assessment process and it must be capable of standing over the consistency and integrity of the experience for the students.  The recording of the assessment talks is an alternative to a student presenting their final work at an exhibition or, an alternative to completing their final work. 

From the lecturer’s perspective, the resolution of this grievance requires what Mr Curran referred to as a “mutually agreeable solution.”  As the parties have failed to arrive at this outcome, it falls to me to make a recommendation.  I have listened to the lecturer’s concerns and I have also taken account of the rationale for recording the assessments outlined to me by the college representatives. 

More than a year on from March 2020, it is a puny understatement to remark that Covid 19 changed the way we work.  Working from home was manageable for some and hugely challenging for others.  For people that had to go into work, many did so at a considerable personal sacrifice.  Hundreds of thousands lost their jobs.  This is the context of the search for a mutually agreeable solution and one which provides reassurance that this lecturer’s rights are not infringed. 

Mr Curran said that the lecturer agrees with the changed work practices introduced in the wake of the pandemic.  He argues however, that recording him in his home is not a condition of his employment.  He complained that the academic council made the decision to record the assessment talks without the consent of those being recorded.  He said that his home is a place he shares with his family and is private, and that recording of him in his home is an invasion of his privacy.  Based on the discovery of personal documents in a skip, he is concerned about how the college will manage the recordings of the assessment talks from a data security perspective.  He is seriously aggrieved that he has been excluded from the examination assessment team in his department and, he said that the recording policy was not applied consistently in all the departments of the college.

At the hearing, I learned that the purpose of recording the assessment talks was to have a record of the student explaining what they intended to make as their final exhibit, or, if they had had an opportunity to make a start on an exhibit, to explain how they intended to complete it.  It is clear that this somewhat conceptual, although necessary approach to a final assessment had risks attached.  One of the risks was that there was no physical exhibit to stand as evidence of the quality of a student’s work.  To mitigate against this, it was decided that a filmed record of the student acclaiming their work, by answering questions from two examining lecturers, would be made for consideration by the internal and external examiners.  It seems to me that this is a legitimate and practical way of ensuring consistency of treatment across the final year student cohort, and of providing a degree of integrity to what had the potential to be a worryingly nebulous assessment process.

At the hearing, the lecturer said that from the end of April 2020 to the beginning of May, staff were informed that a recording of the final assessment talks was being proposed.  He said that various options were put on the table but that these were not accepted by the management.  A final decision on the issue was confirmed at a meeting on June 23rd.  It would appear from this that were discussions took place about the recordings, but in the end, despite the objections raised by some staff, the academic council decided to proceed without seeking individual consent.  While this was described as “a decree” by the SIPTU representative, it is a fact of life that managers have the responsibility to manage.  In the crisis context of the pandemic, it is my view that, having commenced discussions on the final year assessments at the end of April, by June 23rd, it was not unreasonable to end the discussions and to make what, to some, may have been an unpalatable decision to record the talks.

The fact that participation in recorded assessments is not specified in the lecturer’s terms and conditions of employment is not, in my view, significant.  After more than 35 years’ service in the college, I have no doubt that he has experienced many changes that have not been negotiated or committed to writing.  I return to the context of the crisis in which the assessment practice was changed, and I find that it was not unreasonable to request the lecturers to co-operate with the change for one academic year.

One of the concerns raised by the lecturer was the fact that he was required to participate in the recordings in his home.  I think that some ingenuity on his part could have ameliorated this problem.  The lecturer is engaged in the physical arts and, from Mr Curran’s submission, I understand that, apart from his job in the college he makes work himself for exhibitions.  He may have access to a workshop or studio from which he could have joined the assessment meetings.  Alternatively, he could have used a blurred background, or he could have made a screen to conceal personal effects in his home.  He was requested to facilitate the recording of 10 students, all of whom he had tutored.  He had the means himself to ensure that his privacy was not infringed.  Unlike many people working from home, he was not required to engage with any member of the public or anyone he didn’t know, and it is my view that a temporary recording of 10 meetings in his home or workshop was not an unreasonable change to the examination process for one year.

I appreciate that the disposal of personal documents in a skip was a flagrant breach of data protection regulations and disrespectful to the staff who were affected.  The director acknowledged that this was unacceptable.  The policy on the alternative assessment of students in the context of Covid 19 states that the recordings will be destroyed in autumn 2020 following the conclusion of the assessment process.  If it has not already been done, I think it would be reassuring if the person in the college with responsibility for information security writes to the lecturers and students who participated in the recorded assessments, to confirm that the recordings have been destroyed, the manner in which they were destroyed and the date on which this occurred.

Another concern raised by the lecturer was that, in some departments, the entire assessment session was recorded and in others, only the student speaking was recorded.  The college representatives did not dispute this, so I assume that there was some deviation from the format provided in the “Alternative Assessment Guidance” document.  It seems to me that this deviation is not in line with the objective of the recorded assessment, which was to provide consistency in how each student’s assessment was carried out.

It is regrettable that the lecturer was removed from the examination team.  My impression from the letter of June 30th, 2020 from the head of academic affairs, is that when she confirmed that he was removed from the assessment team, she may have expected him to drop his objection.  In any event, 20 minutes after she sent her email, he confirmed that he did not give permission to be recorded.  He did however hold out an offer to “assess and examine the work that is marked and grades leading to a … degree.”

I understand the objections of the lecturer to the decision to record the assessment talks for the final year of the degree and masters’ programmes.  I accept that it was a change to the normal examination process; however, in the context of the Covid 19 restrictions and their impact on the ability of students to complete their final work, I find that the requirement for lecturers to participate in recorded assessments was not unreasonable.  That said, I think that it would also have been reasonable to accept that the lecturer did not wish to be recorded.  An alternative course of action would have been to let the recorded assessments go ahead without him and for him to meet with the participating lecturers afterwards to agree on each student’s final marks.

The 2020 academic year is over and the issues that gave rise to this grievance will, hopefully, not arise again for a long time.  It is my view that this lecturer’s objection to participating in the recording of assessments was disproportionate in the context of the flexibility given by and the changed work practices of workers everywhere.  For the management’s part, I think that a small innovation was required to avoid his removal from the examination team.  I have set out above what this would have involved. 

As the recording of the assessment talks will no longer be a feature of exams, no further consideration is required to manage this grievance.  I recommend that, in an effort to restore any damage that may have occurred to the lecturer’s reputation, the 2021 graduating students are informed in good time that he will be a member of the examination team.  I recommend that no further action is taken.

Grievance, changes as a result of Covid 19 restrictions