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Court of Appeal victory for professor in remarked exam papers row

25 February 2010

UCU has hailed a victory in the Court of Appeal for former Bournemouth University professor, Dr Paul Buckland, as an important victory for everyone who values high standards and probity in education.

The case, handed down yesterday (Wednesday), centred around the remarking of exam papers and subsequent passing of 18 students after they had originally been failed.
 
The three judges were unanimous in their decision to strike down Employment Appeal Tribunal's finding on constructive dismissal and reinstated the tribunal's original decision in Dr Buckland's favour from August 2008.
 
In August 2008 a tribunal in Southampton unanimously found in favour of Dr Paul Buckland, an eminent professor of environmental archaeology, in his case against Bournemouth University for unfair dismissal. The tribunal said the remarking of exam papers originally marked by Dr Buckland, and confirmed by the board of examiners, was an 'insult to his integrity'. That decision was overturned by the Employment Appeal Tribunal in May 2009.
 
In 2006, 18 students failed an examination set and graded by Dr Buckland. Sixteen candidates took a resit at the end of August and 14 of them failed that examination. On both occasions the exams were marked by Dr Buckland and then by a second internal examiner. The marks were confirmed by a board of examiners at the beginning of September.
 
However, the scripts were remarked following the intervention of Dr Miles Russell, programme leader for the archaeology BSc, and the marks approved by Dr Brian Astin, chair of the board of examiners and the dean of the school of conservation. Dr Astin did not involve Dr Buckland in the remarking process. The new set of results saw a number of students move from a fail to a borderline position where they could pass if their marks were high enough in other areas.
 
Essentially, students failed by Dr Buckland, and originally accepted as having failed by Dr Astin and the examination board, subsequently passed after Dr Astin accepted the remarked papers. Professor Buckland complained about Dr Astin's actions and the university conducted an investigation headed by Professor John Vinney.
 
Whilst the outcome of that investigation in-part vindicated Dr Buckland's complaints he resigned complaining that the investigatory report concluded that 'in this particular case any fault lay with the examiners and that a head of school has a right to arbitrarily overrule the correct marking process'.
 
Finding in favour of Dr Buckland, the original tribunal said it found it 'extraordinary not only that [Dr Buckland's] papers were remarked... but that the remarked papers should be accepted and confirmed by Dr Astin on behalf of the board of examiners'. It also criticised the interference in the marking process and said that Dr Russell 'simply had no business intermeddling in the marking of the papers...whatever his motives may have been'.
 
The central issue before the Court of Appeal was whether a fundamental breach of an employee's contract, so serious as to cause them to consider the contract to be at an end and resign, could be cured by the employer's actions. The court held that a breach, once committed, could not be undone. It confirmed that it is for the innocent party to decide whether they choose to accept the breach and resign. It is open to the guilty party to 'make amends – to persuade the wronged party to affirm the contract. But the option ought to be entirely at the wronged party's choice.'
 
The Court of Appeal reaffirmed the Employment Tribunal's finding that the Bournemouth University undermined Dr Buckland's status and that by undertaking and accepting the re-marking of the resit papers it had caused 'an unequivocal affront to his integrity as to which his sense of grievance ... was fully justified.'
 
UCU general secretary, Sally Hunt, said: 'This is an important victory for everyone who values high standards and probity in our universities. Dr Buckland's defence of academic standards and examination procedures must be congratulated. However, we are deeply concerned about the events that led to this tribunal. Staff need the confidence to be forthright and honest in their comments and assessment of work.'
 
Dr Buckland said: 'The verdict restores the right of individual academics to return marks within the subject in which they are acknowledged experts.'

Last updated: 11 December 2015

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