Poaching of university staff – a brief note
Posted in Legal issues on August 29th, 2019 by steve
Maynooth University have sued University College Dublin, saying that one of their professors was persuaded by UCD to move to that institution. MU are not trying to prevent the move, but they insist that UCD have acted illegally, and want the High Court to issue a declaration to that effect. Certainly persuading academic staff to change their employer is not as such illegal, but legally speaking there is more to this.
First, MU point to an agreement of 2006, between the chief officers of the seven universities, designed to cool down any developing transfer market. Each undertook to ensure that recruitment would be ‘open and transparent and on the basis of international best practice’, to be mindful of each other’s areas of strategic importance, and to look for possibilities for collaboration.
Second, Irish legislation requires that university appointments procedures be set out ‘in a statute or regulation’ (Universities Act 1997, s 25(1)); and UCD’s statutes and regulations, at least as published online, don’t seem to allow for simply approaching some likely lad/lass and offering a professorship – appointments must usually either be by internal promotion or by open competition (see here, here and here). Having said that, the circumstances aren’t entirely clear – if this case falls into some exception in the current regulations, then no doubt UCD will point this out in short order.
Both arguments are serious, though neither seems absolutely watertight. The 2006 wording is in many respects vague, which makes it hard to demonstrate breach of the agreement, and may even suggest that it doesn’t constitute a legal contract. Its duration is vague too – and it certainly doesn’t say it binds in perpetuity. Non-compliance with the 1997 Act may be easier to demonstrate, though some may wonder about MU’s standing to complain of this – Why should they have a legal interest in UCD’s employment strategy? And if the problem is the lack of a regulation to cover this situation, UCD could resolve that for the future very easily, by writing one. So as a matter of strict law, UCD may have relatively little to worry about.
But winning the legal battle may lose them the war. If UCD are under no legal restraint in poaching staff from other Irish institutions, and can shrug off any obligation to respect ‘international best practice’ as non-binding, then yet another front opens up in the struggles each Irish university must engage in. It is hard to see how the DES will be happy with that. Quite unlike policy in a certain neighbouring jurisdiction, Irish national policy tends to stress the need for third level institutions to complement and support one another; Ireland competes with the world, but not so much with itself.
The DES have already signaled that they do not want this matter before the courts. With the ministers openly calling for ideas to include in revised university legislation, and ostentatiously planning to beef up the powers of the regulator, this is not the time to be trumpeting a current freedom to act in a way that might be considered uncollegial. So universities must settle their quarrels between themselves, or have them settled by others – peace has to break out.
But on what terms?
The Blogmeister
