Analysis: devil is in lack of detail with Thomson report

Much work still to be done to convince the wider rugby public that lessons have really been learned

Dee Bradbury and Ian Barr
Scotland's clubs will look to SRU President Dee Bradbury and Vice-President Ian Barr to ensure that the sport can move on after a tumultuous summer ***Image: © Craig Watson -

DOES the Lesley Thomson review offer a fresh start for the Scottish Rugby Union? Or is it a missed opportunity?

In one sense, the short answer has to be that only time will tell. If we never again see the sort of high-handed over-reach by senior executives that led to Keith Russell winning a claim of unfair dismissal against the governing body, that will be progress of a sort, and in that event it would be fair to presume that the review’s recommendations played a part in enabling that progress. By the same token, if there is anything close to a recurrence of the Russell case in the coming years, the conclusion can only be that nothing has been learned.

In another sense, it is hard to tell precisely what the former Solicitor General for Scotland is offering, because the statement issued by Murrayfield yesterday contained no more than a bullet-point summary of her recommendations, often expressed in polysyllabic legalese. Some other recommendations are not mentioned at all.

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This omission may arise from the desire or need for confidentiality, but either way, it is impossible to be wholly supportive or entirely dismissive of a work that has not been published, and of which we only know those elements which were included yesterday in a statement from the SRU –  the very body being investigated.

As a consequence, when SRU chairman Colin Grassie says in that statement that “we have accepted, and will implement, all the recommendations that have been put forward” by Thomson, it is difficult to respond with even two cheers. If the union had rejected an inquiry that they had established themselves, it really would have been a signal that the leadership felt they bore no accountability to the outside world.

So what recommendations have been published, and what should we make of them? The first on the list is –

Strengthening Human Resource capability and resource at a senior level to reflect the growing scope of Scottish Rugby as a diverse and complex organisation with multiple staffing needs and expanding legal responsibilities.

This is a suggestion that the HR department has not been as observant as it should of how employees must be treated in certain circumstances, and it would certainly be hard for Thomson to have suggested otherwise, given the tribunal judge’s ruling that the dismissal of Russell had been “procedurally and substantively unfair”. But, while the HR department is criticised, there is no mention of the role of chief executive Mark Dodson –  indeed, while he has been the central figure in this whole affair, he is not mentioned by name once in the entire statement.

The next two recommendations are about the use of Non-Disclosure Agreements, or “settlement agreements” as the statement prefers to call them, which restrict what departing employees can say about their time about the SRU.

One recommendation says –

Recognition that settlement agreements are a legitimate facility which should be retained, but are not to be used as part of performance management procedures.

And the next tells us –

Any other use of settlement agreements to be in exceptional circumstances only, with advance approval of the Board’s Remuneration Committee and following ACAS codes of practice and guidance, if they are to be used.

The second sentence represents an important step forward, but it is concerning that so much emphasis should first be put on the retention of NDAs. The need for commercial confidentiality is often the justification for their use, but this was not a factor in the case of many of those who have signed one in recent years. The Offside Line is aware of serious concerns raised by some of those signatories about the culture within Murrayfield, but again, there is no mention of this.

The penultimate bullet point is another procedural point, recommending –

An enhanced remit for the Remuneration Committee of the Board providing for: (i) Reporting to the Committee of performance management issues, (ii) Committee approval for any dismissals of any employee whose initial appointment was subject to Committee approval, and (iii) Committee approval in future of any request to use a settlement agreement.

Point two in particular seems to make perfect sense.

Finally, Thomson recommends –

A full endorsement of the decision to conduct a governance review, led by Independent Chair Gavin MacColl QC, to examine governance structures and ensure they are fit for purpose in a modern and transparent rugby environment.

Given what has gone wrong within the SRU over the last few months and more, it would be churlish to say: “No, don’t bother with a governance review –  just carry on as you are.” But the worry about this last point, as about most of the others, is the emphasis on structure and process and governance at the expense of any assessment of individuals.

After all, you can have the best structure in the world, with all sorts of checks and balances in place theoretically. But if key individuals within that structure do not perform their roles adequately, abuses will take place.

Given the omission of such an assessment, it is hard to place too much faith in the Thomson report. And given the SRU’s redaction of a large chunk of that report, we have every right to be sceptical about their willingness or ability to implement its recommendations. Yes, there is at times a legal or personal case for confidentiality, but when an organisation declines to reveal something to you, you can be damn sure it’s because they’ve got something to hide.

A sport’s governing body should be as transparent as possible if it is serious about being open and welcoming to anyone who may take an interest in that sport. Lack of that transparency means that the Thomson report, at least in the reduced form in which it has been presented to us, is indeed a missed opportunity.

As for a fresh start? Perhaps our best chance for that lies not in Thomson, but in the recent election to office of SRU President Dee Bradbury and Vice-President Ian Barr – two figures who hopefully have the strength to cast a cold eye on what has gone on within Murrayfield and resolve to do all they can to improve things.

David Johnston column: Reviews welcome but must deliver on NDAs and governance


About Stuart Bathgate 1390 Articles
Stuart has been the rugby correspondent for both The Scotsman and The Herald, and was also The Scotsman’s chief sports writer for 14 years from 2000.

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