Security of tenure gives third level faculty members a proprietary right to their position and prevents their removal except in extreme circumstances. Tenure does not guarantee a post for life. What it essentially means is that an academic "owns" his/her position and the right to return to it year after year.
The Debate - Croke Park and Hunt
The impact of the Croke Park Agreement and the Hunt Report on academic freedom and tenure has been the subject of much debate in this year.
Some academics argued that the implementation of the Croke Park Agreement will hasten the demise of academic freedom and that third level education will be irretrievably damaged as a consequence.
The Irish Universities Association and the University Presidents stated that the Croke Park deal was about accountability and not control. They added that it was reasonable for the deal to set down minimum attendance hours for academics and that the universities were committed to academic freedom of thought and inquiry but that a more dynamic and flexible educational environment was needed. The Presidents warned that the idea of "unsackable" academics does no service to the sector and undermines confidence in the quality of Ireland's higher education system. This last statement is particularly relevant due to recent concerns raised by US multinationals about the quality of graduates and the allegation of grade inflation in universities.
The Hunt Report recommended new contractual arrangements with strong internal accountability (such as minimum teaching hours) and scope for performance-linked pay with some bands; more flexible teaching term and teaching day arrangements to meet students' needs and outreach activities, and the use of 'teaching only' academic contracts.
The Law
Sub-section 25(6) of the Universities Act 1997 (the "Act") entitles a university to dismiss (or suspend) any employee. However, such a dismissal (or suspension) can only be done in compliance with procedures and conditions specified in the statute of the university concerned. Therefore, any dismissal (or suspension) of an academic which is not in accordance with procedures and conditions specified in such a statute will be invalid.
The relevant university statute must be made following consultation through normal industrial relations structures and permits such procedures to allow for the delegation of dismissal (and suspension) powers to the universities chief officer.
Finally, the subsection states that the university shall "provide for the tenure of officers."
Section 3 of the Act provides that "officers" include "permanent, full-time members of the academic staff of the university".
Not only does Section 25(6) of the Act cater for tenure for academic staff but it also demonstrates a legislative commitment to the principle of academic tenure. This is particularly so as this section mandates dismissal procedures to be set out in universities' fundamental constitutional documents, and where such procedures affect full-time members of the academic staff, the university must provide for tenure.
'Tenure' defined
The legislation does not actually provide a definition for tenure but case law provides some clarity in this regard.
In Cahill v Dublin City University (2007) IEHC 20, the issue of tenure under the Act was debated in the High Court and on appeal in the Supreme Court. Although this case was ultimately decided on other grounds, Mr Justice Clarke said that tenure meant something more than simply delineating terms and conditions as to length of employment. Clark J. emphasised that tenure brings with it a greater degree of permanency for full-time academics than would be the case in circumstances where, as a matter of contract, such officers could have their contract terminated on 3 months notice.
In the case of Sheehy v Ryan (2008) IESC 14 the Supreme Court referred to the fact that some contracts were "permanent and pensionable". These types of positions are often described as such in the statute creating the position. Accordingly, these positions are not terminable on the giving of reasonable notice, rather are only able to be terminated by the employer for misconduct, neglect of duty or unfitness. Such positions are more permanent than an ordinary permanent employment contract, which is terminable on notice.
Justice Clarke held in the Cahill case that Professor Cahill's employment was invalidly terminated, principally because the appropriate procedures specified in the university statute were not followed by the university. In dismissing DCU's appeal in the Supreme Court, Mr Justice Geoghegan stated that it was clear from the Act, the university statute and the fact that Professor Cahill was an officer of the university, that DCU had an obligation to afford him fair procedures.
In Cahill, an interesting point was also raised in relation to whether academic tenure prohibits dismissal under compulsory redundancy. Justice Clarke suggested that university statutes could curtail tenure in certain circumstances, like a reorganisation or amalgamation of departments.
Whilst there has been an increase in the powers of university management in recent times, it is our view that the legal status of academic tenure has not changed. The case of Fanning v University College Cork (2008) IESC 59 emphasised the fact that those who held tenured positions before the introduction of the Act continue to retain their rights into the future.
Conclusion
Legislative changes introduced under the Thatcher Government with the UK Education Reform Act in 1988, meant that subject to some exceptions, academic tenure was abolished for certain categories of staff. A section securing academic freedom was inserted in its place.
Apart from the requirements set out in the Croke Park Agreement for increased monitoring of academics workload and accountability, any changes in tenure law would require an amendment to the Act. These amendments, based on the Hunt recommendations, would have to be agreed by the new Coalition partners, and be developed by the Office of the Parliamentary Counsel into the format of a Bill. The Dail would have to vote and pass the Bill into law. Although there has been much debate and uncertainty recently surrounding the security of academic tenure, it is unlikely any amending Act would be passed this year.
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