1999      24 December  Letter to DfEE     17 November    Letter to DfEE     23 October    Letter to AoC     14 October    Letter to DfEE     11 October    Letter to AoC     4 October    Letter to DfEE     4 October    Reply from AoC     1 October    Reply from DfEE     29 September    Letter to DfEE     27 September    Letter to AoC     26 March    Reply from EC Commissioner     8 March    Letter to European Commissioner      1998   10 February    Circular to College Principals

[CIRCULAR TO PRINCIPALS OF COLLEGES WITH LEAF MEMBERS]     The Principal and Chief Executive     10 February 1998     LEAF---THE PROFESSIONAL LECTURERS UNION        Dear Principal,        The Future of Industrial Relations in the Incorporated FE Sector.     You will no doubt be concerned about the difficulties that have beset the sector recently, and in particular the revelations surrounding the activities of the Association of Colleges. We in LEAF have been monitoring this situation carefully, and it is in this connection that we are setting out our proposals to you today. We hope you will take the time and effort to read this letter carefully, and respond positively to its contents.     An old Chinese curse urges: 'May you live... in interesting times'! Unquestionably life in further education has been interesting since 1992. While these 'interesting times' cannot have been easy for management, they have been little short of traumatic for teaching staff.     The changed environment has been influenced, for most teaching staff by two significant factors:     1) The collective disinclination of most college managements to participate in traditional collective bargaining.     2) The adoption by some college managements of an attitude towards its professional staff which was totally alien to the preincorporation traditions of consensus and co- operation. We shall term this approach 'Wardism'. a wholly destructive approach to human resource management, whose genesis coincided with the emergence of the CEF as the main employers' body.        LEAF'S raison d'etre.     This radically changed environment created the impetus for a new staff union, which could and would take a pro-active stance when necessary, and which would be prepared and able to offer a constructive contribution to the industrial relations scene.     In deciding to accelerate our efforts on behalf of the lecturing profession, our resolve has been strengthened by the most recent revelations, which we have predicted for some time. and by the fact that we have been able to build up an appropriate legal and administrative team. LEAF is now in a position to offer pro-active employment advice and action to lecturers throughout the UK.        Righting... Past legal Wrongs.     In particular, having consulted extensively with our legal advisers, we intend to concentrate our efforts, to begin with, on colleges who have either:     1)... intimidated staff into agreeing to a fundamental change in the terms of their employment, or     2)...whose conduct has caused staff to leave their posts, by way of early retirement, redundancy, ill health or dismissal; or     3) ...have otherwise acted in a way contrary to either the National Conditions of Service (where appropriate) or contrary to the current contract; or     4) ...have insisted that their part-time staff (or a proportion of them) submit to a closed agency arrangement, particularly with Education Lecturing Services     Further, you may be aware that the civil law's limitation, on matters of contract, is six years, and that the county court's small claims arbitration facility (with it's general non-costs rule) is automatically available for claims of 5,000 or less, and can in certain circumstances be extended to claims above that limit.        Recognising the Changing Nature of the Employment Relationship.     In reaching a decision in the case of Malik v BCCI (1997), their Lordships recently confirmed that the traditional (past) view of the employment relationship, as one of master and servant', has gone, and that the employment relationship should now be regarded for legal purposes as one of 'mutual co-operation'. In explaining their view, they pointed out that from this 'essence' (of mutual co-operation), stems the all-pervasive implied contractual term/obligation of trust and confidence.     It would follow from this view that conduct by one of the parties, which results in a loss of mutual trust and confidence, may amount to a breach of the fundamental term of the employment contract and, in appropriate circumstances can amount to constructive dismissal.     Please compare this view of employment law, in the context of suggestions/advice given in the 'Enabling Contracts Review', to all member corporations, on how to remove staff from their lawful contracts of employment, and consider the advice you have been given.     Further, where the nature of the breach of contract/dismissal adversely affects the employees future job prospects, this is now a separate 'head' of loss in the compilation of 'heads' which results in a total figure for compensation.        Proving our Case.     It will be seen, therefore, that any college whose history and record points to their having followed the suggestions made by the employers' organisation, for example in the aforementioned circular and numerous other communications which we have knowledge of, are likely to be judged to be following their course of action for the same declared purposes. It will be appreciated by you that consent given under threat (whether stated or implied), intimidation, ill health, or other coercion, may have its validity challenged. In short, we believe that association with the declared views of Ward on this matter may count against employer colleges, at any future court hearing.        Counting the Cost.     Within a very short time of it's inception, LEAF began to come across numerous former further education lecturers for whom their treatment at the hands of managements (following the tenets of Wardism) had resulted in possibly permanent damage to their careers. For many who remain, and have contacted us about their grievances, our legal advisers have already extracted from tribunals, acceptance that they are entitled to use both their statutory and common law powers to award compensation, contemporaneously. This effectively adds 25,000 to the normal ceiling of damages for unfair dismissal, where breach of contract has also arisen.     Reverting back to our earlier point, about the consequences of being permanently excluded from a very structured career, like teaching, you will, of course realise that:     a) since a landmark legal decision (of 1994) regarding the effect of the EU Equal Rights Directive, part time workers have been accorded the same rights, including entitlement to the same conditions, as other employees;     b) those forced into a closed-agency arrangement will have lost (as a minimum) the 8/o of salary employer's contribution to the teachers pension scheme, for the remainder of their working life. This can amount to considerable sums, bearing in mind the tax , efficient regime enjoyed by pension contributions over 10-20 years.     If your college falls within one of the above categories, we would strongly urge that it reconsider its position. It is very likely that a legal challenge will be made in the coming year on behalf of lecturing staff so affected by the above realities. We are currently conducting a survey of staff experiences and will advise/assist as appropriate, when requested to do so.        Unlawful Interference will not go unchallenged.     With reference to the last of the above categories we have cited, you may be aware that LEAF successfully challenged an AoC member college which had dismissed one of our members because of his refusal to be forced into such an arrangement.     Recently, he was reinstated on his original terms, with continuity of service, back pay and pension and other entitlements preserved. The college concerned reported to the press that the lecturer concerned had been reengaged because he was such a decent person. However, we in LEAF live in a real world, and we have noted the significance of the college's U-turn, following intervention from a member of our legal team.     It is our view that the concerted action of many colleges, under the 'guidance' of Mr Ward and his executive at the AoC, to implement a closed-agency policy for part-time staff, often under the threat of, or after having been, dismissed, may amount to an unlawful interference in the rights of the employee.     You may not, however, have been aware of the full implications of the law in this respect, viz:     1)...that the civil law promotes competition, by pure market means;     2)...that the law tends to react against any commercial activity which leans against perfect competition;     3) ...that, in particular, the law reacts against any form of combination (whether formal - as in the case of a monopoly, oligopoly) or cartel, and offers not only a course of action, but legal redress;     4) ...that any attempt to persuade a party to an existing contract to break that contract could be deemed incitement;     5)...that any agreement with a third party to a contract to break the same may be deemed conspiracy     6) ...that any act of intimidation designed to or which results in such a breach may be unlawful.     You will undoubtedly note from recent TES reports that the agencies concerned, together with the Association of Colleges, were sufficiently well aware of these possible problems to have felt obliged to seek legal advice on these very points. A partial (and in our view, tendentious, summary of the advice will have been communicated to you, according to information we have).     We are currently compiling a dossier of evidence relating to the coordinated action of colleges, and lecturing agencies, in respect of the above. We will seek legal redress for past wrongs     We would, in the above context, remind or further advise you, that while the normal industrial tribunal limitation period is three months, this can be extended where reasonable and practical to do so, such as when new essential evidence comes to light. We are aware that, for example, many colleges have, following the advice of the FEFC/AoC, advised staff that the 'management guidelines' are not contractual or not legally binding, when the 'parole evidence rule' makes it clear that, where a contract cannot stand on its own, without reference to another document, then the second document forms part of the contract. The result is likely to be that where staff have agreed to such an arrangement, containing a contract with a perpetual variation clause, operative only and essentially unilaterally by management, this may fall foul to a legal challenge.     You may be aware of the decision of Lord Justice Donaldson in the Janata Bank Case (1981), where it was declared that: "the continuously changing contract is unknown to law".        A Proposal for the Future.     You will have appreciated just how many possible ramifications are likely to flow from the decisions taken by college corporations on the advice of the 'organisations the Colleges Employers Forum (CEF) and the Association of Colleges (AoC) both led by Mr Ward. He has now had to admit to the House of Commons Education Select Committee, that he misled them over the question of a register of interests. Three senior members of the AoC had to write to the Committee demurring from comments made by Mr Ward at his first appearance before the Committee. It may be that further issues will emerge in the future.     It must be obvious to all right-thinking college corporations that there have been many areas where the influence of the employers organisation has been wholly detrimental to good industrial relations, and constituted poor personnel management practice in a very labour- intensive service.     We therefore urge you to take stock of the situation, and to resolve to move forward by adapting to the changing and challenging environment, in a spirit closer to the Law's declared 'relationship of mutual co-operation'. It is LEAF'S intention to work pro-actively towards forging a return to more civilised (and lawful) working practices, between management and lecturers. We invite you to grasp outstretched hand of co-operation and respect. That hand is outstretched by an organisation which is growing rapidly, and is sufficiently confident of its position to declare that it will achieve its objectives of returning the sector to an equilibrium, with or without the employers co-operation. We would prefer the former, but we are prepared to deal with the latter.     We are seeking your co-operation in building a new future for the sector for the new century built upon co-operation and shared objectives. We hope you might join us.     We are enclosing a copy of this letter for your chair of governors.        Yours faithfully,        David Evans  General Secretary LEAF     David Robinson  National Officer LEAF           Return to top of Page             LEAF  126 St. Augustine's Avenue  Thorpe Bay  Essex SS1 3JF  U.K.     Padraig Flynn  European Commissioner  Rue de La Loi 200  B1049 BRUSSELS  Belgium        8 March 1999        Dear Mr. Flynn,        The transfer of Colleges of Further Education in the United Kingdom in 1993 -- legal developments.     Further to my letter to you of 13 February 1999, and with reference to our complaint regarding the unlawful transfer of lecturers to inferior conditions of service following the change of employers in 1993, I can now report a new development.     At a hearing for directions, held at the Industrial Tribunal in Stratford, London, on 18 February this year, a full hearing was listed for six days, from 26 July to 2 August 1999. The issues, which the Court will determine upon are as follows:     a) the application concerns Section 11 of the Employment Rights Act 1996, and the tribunal is to determine the exact terms and conditions of the Applicants contracts of employment.     b) whether the incorporation of the college (1993) constituted a relevant transfer.     c) whether the college is an emanation of the state.     d) whether the applicants were unfairly compelled to agree to the variation which took place, and if so, what is the consequence?     e) whether the variations were connected with the transfer.     You will know that our view is that lecturers in the United Kingdom were unlawfully removed from their transferred conditions of service, in contravention of the Acquired Rights Directive. This case is the first and only time that the test of European Law has been brought to bear on this matter. I am bringing this matter to your attention as you requested in your letter to me of 17 April 1997.     May I thank you for your interest in this important case. I should still like to very much to have a formal meeting with you to discuss this matter.        Yours sincerely,        David Robinson  National Officer LEAF           Return to top of Page             Padraig Flynn  Member of the European Commission  Rue de La Loi 200  B1049 BRUSSELS  Belgium     Mr David Robinson  126 St. Augustine's Avenue  Thorpe Bay  Essex SS1 3JF  U.K.        0331 26.03.99        Dear Mr. Robinson,        Thank you for your recent letter concerning the application of Directive 77/187/EEC on transfers of undertaking to Colleges of Further Education in the United Kingdom.     In 1996 and 1997, both I and DG V exchanged correspondence with you and Mr.David Evans on this matter.     I can reiterate that my services want to continue to monitor developments in this matter, and I thank you in advance for keeping us abreast of developments taken by the Industrial Tribunal at Stratford.        Yours sincerely,        Padraig Flynn           Return to top of Page             Mr David Robinson  126 St. Augustine's Avenue  Thorpe Bay  Essex SS1 3JF        David Gibson  Chief Executive  The Association of Colleges  5th Floor  Centre Point  New Oxford Street  London        27th September 1999        Dear Mr Gibson,     The Effects of the Working Time Directive ---  Employees of Further Education Colleges     I write in the light of the recent letter and enclosures sent to you on this matter by the General Secretary of this union, David Evans, and your reply in which you noted our remarks.     In consequence of the admission of Counsel for the Association of Colleges that colleges of further education are emanations of the State, contrary to your earlier assertion, it is now appropriate to write to you regarding the effect of the Working Time Directive upon the employment of lecturers in further education.     At the time we first wrote to you on this matter, in December 1996, the majority of LEAF members were employed on the terms and conditions of employment negotiated by the National Joint Council for Lecturers in Further Education in England and Wales. Their terms and conditions, insofar as they relate to working time, are set out in Section 8 of the NJC terms and conditions of employment [the Silver Book]. Insofar as they relate to annual leave, the relevant terms are as follows:-     1. By virtue of Section 8.2, a lecturer may be required to undertake college duties (on college premises) for up to 38 weeks per annum. A lecturer may be required to teach for up to 36 weeks per annum (Section 8.3).     2. A lecturer may not be required to work on a bank holiday by virtue of Section 8.4.     3. Teaching duties may not be required for a continuous period exceeding 14 weeks and they must be followed by a break (from teaching duties) of at least two weeks if continuous teaching is required for a period of between 9 and 14 weeks duration (Section 8.5).     4. Colleges must be closed for at least 7 consecutive days at Christmas and at Easter; and     5. Unless an agreement is made to the contrary, every lecturer shall be entitled to not less than 6 weeks and preferably 7 weeks continuous holiday during the summer months (Section 8.7).     It is understood and accepted by all sides that these periods do not reflect the total time that a lecturer may be required to devote to his or her duties.     There are other lecturers employed by colleges on different terms and conditions. Their contracts are of varying duration. However, they share a common feature with those employed on Silver Book terms; they are paid only for the work they do and they do not receive paid holidays.     You will be aware that the UK Government has now transposed the Working Time Directive into domestic law, and that the effect of this transposition is to grant all employees [with limited, and in our case, irrelevant exceptions], the right to four weeks paid holiday per annum. You will also know that this right was granted to further education colleges from the 23rd of November 1996, by virtue of the direct effect of the Directive against emanations of the State.     You may also be aware of the judgement in Gibson v East Riding of Yorkshire Council [E.A.T 3rd February 1999], in which it was decided that four weeks paid holiday applied, because it is not open to the State or an emanation of it, to rely upon an option it had not exercised.     It is now incumbent upon you to take immediate action to make your member colleges aware of the consequences of the Directive. We believe that the consequences that flow from the Directive for further education lecturers, since the 23rd November 1996, are as follows:     Express provision must be made allowing lecturers to take annual leave, with pay, of at least 4 weeks per annum free from any obligation to perform any services for their colleges;     The exception allowed for in Section 8.7 for continuing classes must be modified so that in every case whether or not there is an agreement to the contrary, lecturers must be allowed at least 4 weeks paid annual leave; and     Lecturers employed on term time only contracts must be allowed paid annual leave pro rated by reference to their working year.     It is also our view that the appropriate deduction to make from pay if a lecturer is engaged in industrial action in the future needs to be revised. The guidance given by the National Joint Council in 1991 was that the appropriate reduction was one-one hundred and ninetieth of annual salary for each day of industrial action.     This figure is derived from the 38 week working year referred to above. The National Joint Council's view was supported by various Courts decisions, particularly a decision of the District Judge in proceedings brought by six lecturers against the London Borough of Bexley.     That calculation does not reflect, however, the four weeks annual leave with pay to which lecturers have been entitled since 1996. Your earlier refutation of this point, based on your calculation of losses caused to colleges, will not be consistent with the entitlements conveyed under the Directive which give entitlement to paid leave as a legal right in the contract. The correct fraction is one-two hundred and eighteenth of annual salary for each day of industrial action.     It will be clear to you that the implications of the new reality are that employees are entitled to new statements of their terms and conditions governing their employment by virtue of Section 1 of the Employment Rights Act 1996. It is also clear that many employees are entitled to arrears of paid holiday as a result of the direct effect of the Directive.     I would appreciate it if you could contact me shortly in order that we may discuss and agree a way in which your member colleges are made able to comply with their lawful obligations. I must stress, however, that we shall not accept a refusal to acknowledge our claims, nor any undue delay on acting on the contents of this letter.        Yours sincerely,     David Robinson  National Officer LEAF                  Members of LEAF should contact the union if they wish to be provided with a  customised letter to their principal or chair of governors, concerning their  rights under the Working Time Directive. LEAF has won an important  concession in its test case. Make sure that you now benefit from the effort  LEAF has put in to achieve this position.     Please note that the Directive applies to all employees in the sector. If  you are paid by the hour on a term-time only contract, and consequently do  not receive any paid holiday, you should contact us.     JOIN LEAF TODAY FOR A BETTER TOMORROW.           Return to top of Page             David Evans, General Secretary  LEAF  126 St. Augustine's Avenue  Thorpe Bay  Essex SS1 3JF     Department of Education and Employment  Sanctuary Buildings  Great Smith Street  Westminster  London SW1P 3BT        BY FAX & POST        29th September 1999        For the Urgent Attention of Sam Stoakes        Dear Mr Stoakes,     Further to your letter dated 14th September, and my e-mail to the Minister, my colleague telephoned you earlier today to progress the matter. The frank discussion led to your firm commitment to expediting our request to Baroness Blackstone.     The Havering College Tribunal may well be wholly successful for lecturers and the decision may be as early as December. Our conservative calculations estimate there are 100,000 claims with a value in excess of one billion pounds to be dealt with. Claims of this size do not go away, nor will time delaying tactics to addressing the issues be received sympathetically.      Given the potential number of claims, the damages and administrative costs, some prior consultation will make the entire process more manageable in budgetary and administrative terms for your department and the AOC.     If you put the request to the Minister and she approves in principle, we can then agree diary dates.           Yours sincerely,     David Evans  General Secretary LEAF            Return to top of Page             Department of Education and Employment  Sanctuary Buildings   Great Smith Street  Westminster   London SW1P 3BT        David Evans  General Secretary  LEAF        1 October 1999        Dear Mr Evans,     Thank you for your e-mail of 19 and facsimile of 29 September requesting a meeting about Ms. Ralton and Others versus Havering College.     We are awaiting with interest the outcome of this test case. It is too early for me to comment at this stage and I do not feel there would be any value to be gained from a meeting.     I do hope you understand.        Yours sincerely,     Tessa Blackstone           Return to top of Page             AOC  5th Floor, Centre Point  103 New Oxford Street  London WC1A 1DD        David Robinson  National Officer  LEAF        4th October 1999        Dear Mr Robinson,     THE EFFECTS OF THE WORKING TIME DIRECTIVE---  EMPLOYEES OF FURTHER EDUCATION COLLEGES     I write to acknowledge receipt of your letter of 27th September concerning the above.     As you are aware, this is currently the subject of a tribunal hearing. In such circumstances, it would be completely inappropriate for me to comment. I do however thank you for drawing the matter to my attention.        Yours sincerely,     David Gibson  Chief Executive     c.c. Claire Halley, Havering College           Return to top of Page                David Evans, General Secretary  LEAF  126 St. Augustine's Avenue  Thorpe Bay  Essex SS1 3JF        Baroness Blackstone  Department for Education & Employment  Sanctuary Buildings  Great Smith Street  Westminster  London SW1P 3BT        4th October 1999        E-mail & Post        Dear Baroness Blackstone,     Re: Your Letter of 1st October     Thank you for your letter.     We appreciate your interest in the decision of the Employment Tribunal but we do not accept, as you suggest, that there is no value to be gained from a meeting at this stage.     We appreciate your natural inclination to await the outcome of the Tribunal before meeting us. However, as the emanation of the State point has already been conceded, there is no need to await the Decision of the Tribunal. Given the serious implications of this, it is our view that a meeting is now urgent, for the reasons detailed below.     On the first day of the hearing, counsel appointed by the Association of Colleges conceded that the College was an emanation of the State. The implications of that concession for colleges of further education are very significant indeed.     The concession has important consequences for entitlements under the Working Time Directive, and in particular for Article 7 of the Directive. You will of course know that the Government was in default in transposing the requirements of the Directive into national law. You will also understand that all entitlements enshrined in the Directive took automatic force on the 23rd November 1996, for employees of emanations of the State,     Article 7 of the Directive clearly states:     1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.     2. The minimum period of paid annual leave may not be replaced by allowances in lieu, except where the employment relationship is terminated.     I wrote to the Principal of Havering College in December 1996 asking for our entitlements under the Directive. In my letter I made clear our view that colleges of further education would be construed as emanations of the State, and that all EU directives would have direct effect. Our lawyers wrote to the Association of Colleges on this matter in January 1997.     The AOC denied that colleges were emanations of the State, and said that even if they were, the Directive would not have direct effect, because it was not sufficiently precise. The AOC then circulated principals of colleges with a draft letter to that effect. Shortly after, I received verbatim responses of the draft letter from principals of colleges.     The EAT, in a recent Judgement, concluded that;     "Article 7 is sufficiently clear and precise and, in our view, admits of no ambiguity or conditionality." ......     ......"It applies to all workers, both public and private, other than those stipulated in Article 1(3). It gives effect to paragraph 8 of the Community Charter of the Fundamental Rights of Workers adopted by the European Council in December 1989. It also gives effect to the purpose of the Directive which insists that community workers ["must"] be granted minimum annual periods of rest". (Gibson v East Riding of Yorkshire Council [EAT February 1999]).     The National Officer of LEAF, wrote to the Chief Executive of the Association of Colleges on the 27th September informing him of the ramifications of the concession made by their counsel in the Employment Tribunal on the 26th July. We have yet to receive a response from them, and frankly, we will not accept time delaying tactics. he entitlements to which we refer are already three years overdue.     It is appreciated that you may not have had the opportunity to study the matter outlined above in depth. It is our intention to help elucidate these points, to enable you to be proactive in complying with your statutory obligation without further delay. As employees of the State, further education lecturers who may have suffered a loss of holiday entitlement, having had a three-year delay, have a right to expect the Minister to act swiftly to ensure that their entitlements are met.     It is essential we meet to discuss a way forward. We await diary dates from your private office.        Yours sincerely,     David Evans  General Secretary LEAF            Return to top of Page             David Robinson, National Officer  LEAF  126 St. Augustine's Avenue  Thorpe Bay  Essex SS1 3JF     David Gibson  Chief Executive  The Association of Colleges  5th Floor Centre Point  103 New Oxford St  LONDON WC1A 1DU        11 October 1999        Dear Mr Gibson,     The Effects of the Working Time Directive - Employees of Further Education Colleges     I am in receipt of your reply of 4 October to my earlier letter to you of 27 September.     You appear to have missed the point. The issue I raised in the letter is not subject to a tribunal hearing, as you claim, but has now been agreed by all sides. Please refer again to my letter.     To reiterate the main points; at the Havering College Test Case hearing, Counsel for the College, on behalf of the Association of Colleges, conceded without argument our contention that Colleges of Further Education are emanations of the State and, ipso facto, subject to EU Directives from the time the Directives are promulgated. You had, up until that point, rejected our claim on a number of occasions. My letter to you drew attention to this matter, and asked you to take specific action to ensure that your member colleges are made aware of their obligations under the Directive.     In short, far from being inappropriate for you to comment, it is incumbent on you to issue new accurate advice in the light of the new situation. The situation is that employees of Further Education Colleges are entitled to enjoy the benefits conferred by the Working Time Directive, and particularly the right to enjoy a minimum of four weeks holiday (pro-rata if part-time, fractional or other variation from normal full-time) with pay. In most if not all cases, the entitlement will be greater than four weeks, because the holiday entitlement for part-time staff (of different categories) will be pro-rated to the full-time equivalent. Moreover, this entitlement dates from November 1996, and not October 1998 as you may have assumed.     It is necessary for your organisation to issue clear guidance to colleges on this matter, and in particular to advise them that they will need to pay arrears of paid holiday entitlement back to November 1996 to those staff who did not have the specific entitlement written into their contracts. This will include most part-time, fractional, hourly and term-time only employees. We are aware that colleges have not included paid holidays in contracts they have issued. You will be aware that an allowance in lieu of paid holiday is specifically excluded by the Directive. Nor will it be appropriate to reduce the hourly, daily or other rate in order to accommodate a paid holiday entitlement. Both these practices will be challenged if they are or have been used.     I would like you, within a short time, to confirm that you have issued comprehensive advice along the lines I have outlined here, and in our earlier correspondence. As a professional Union we are interested in bringing about a situation in which both sides are enabled to work in harmony. If you require any assistance with this matter, or would like to discuss the question further , please do contact me. I would, in any case, expect your reply very soon.        Yours sincerely,     David Robinson  National Officer LEAF            Return to top of Page             David Evans, General Secretary  LEAF  126 St. Augustine's Avenue  Thorpe Bay  Essex SS1 3JF     Baroness Blackstone  Minister of State for F & HE  Department of Education & Employment  Sanctuary Buildings  Great Smith Street  Westminster  London SW1P 3BT        14th October 1999        Dear Baroness Blackstone,     Re: Entitlement to Paid Holidays     In my letter to you of 4th October, I addressed the point that many lecturers working within the further education sector do not receive their entitlement to a paid holiday, and requested a meeting with you to discuss the matter.     Surprisingly, you dismissed my request for a meeting, grounding your argument on the supposition that the right to paid holidays is inextricably linked with the decision in Ralton & Others v Havering College, and the concession that colleges are emanations of the State.     I fear you have missed my point. The right to paid holiday is already enshrined in [The Working Time Regulations (1998)]; which you seem to have overlooked. There surely can be no other explanation. As the Minister responsible for the sector, I am certain you would wish to disabuse me of the alternative explanation, that you have no interest in the fact that colleges continue to disregard national law.     I can, if you wish, provide you with a variety of examples of cases across the sector in which lecturers employed by colleges do not receive entitlement to paid holiday. I am also able to provide, at your request, a copy of a college employment contract that contains an express clause in the statement of particulars, which says, "there is no entitlement to paid holiday under this contract".     In order that there is no further confusion or misunderstanding, I shall rehearse the point once again. Colleges of further education continue to flout the Working Time Regulations, which have resulted from the Government's belated transposition of Directive 93/104/EC. Your suggestion that you must await the deliberations of the Tribunal on the matter of the "concession" is, therefore, seriously flawed. National legislation has been in place since 1st October 1998 to deal with the question of holiday entitlement.     I assume you are aware that it is open to any citizen whose rights have been infringed, as a result of a Member State's failure to transpose a European Directive into national legislation within the prescribed time limits, to sue the Government for any losses incurred. That step would impact upon both public and private sector entitlements and is a remedy we are considering. As the Minister responsible for the sector, you have the power under the F&HE Act to intervene in this situation. I ask that you do so with immediate effect.     We look forward to your reconsideration of our request for an urgent meeting, at which we will be able to appraise you of the situation on the ground. We increasingly feel that the reporting of the AOC is resulting in a misleading representation of the true picture of events.     I do hope you will feel able to meet our request on this occasion.        Yours sincerely,     David Evans  General Secretary LEAF            Return to top of Page             David Robinson, National Officer  LEAF  126 St. Augustine's Avenue  Thorpe Bay  Essex SS1 3JF     David Gibson  Chief Executive  The Association of Colleges  5th Floor Centre Point  103 New Oxford St  LONDON WC1A 1DU        23 October 1999        Dear Mr Gibson,     I would appreciate a reply to my letter to you of 5th. October 1999.     It is clear that Colleges of Further Education which are members of your organisation, are not conceding the entitlements conferred to staff by the Working Time Directive. This is despite the fact that the legal requirements are clearly in place.     As I said to you in my last communication, we would ideally like to resolve any differences by discussion and agreement. If this were not possible, we would reluctantly have to consider further legal action to protect and advance our members' interests. This step would be taken only because it was deemed unavoidable.        Yours sincerely,     David Robinson  National Officer LEAF            Return to top of Page             David Evans, General Secretary  LEAF  126 St. Augustine's Avenue  Thorpe Bay  Essex SS1 3JF     Baroness Blackstone  Minister of State  Department of Education & Employment  Sanctuary Buildings  Great Smith Street  Westminster  London  SW1P 3BT        17th November 1999        Dear Baroness Blackstone,     Thank you for your letter dated 5th November.     On the substantive point, you state that Colleges of Further Education are not emanations of the State and there is no judgement to the contrary. Counsel, Melanie Tether acting for Havering College, which was fully supported by the AoC, conceded this in July 1999. LEAF is sceptical as to whether your department has been advised accurately of this and of other events that took place. You and I both know if a point has been conceded, it doesn't have to be argued. Failure to accept that the point was conceded, and to act consistently in the light of that concession, has serious implications.     The criteria upon which organisations are classified as an emanation of the State are established in case law, and it was conceded the criteria applied to Havering College. We are surprised that you appear to be suggesting they do not apply to Colleges of Further Education in general.     To have to even consider taking the Department of Education and Employment to a legal forum has very momentous legal and political implications. If the Department has to be compelled to apply employment law accurately in the light of concessions granted, it is in danger of sending out a most cavalier message to employers and imposing unjust burdens on employees.     You are personally requested to reconsider the stance currently adopted. Perhaps the AoC conference provides the ideal venue for your department to reappraise the colleges/AoC/DfEE relationship, in respect of contractual obligations to part-time lecturers. We wish to provide the opportunity for the position to be properly reconsidered. However, we are so concerned at your recent response that a copy of this letter is being sent to David Blunkett.     We hope your reply to this letter will herald a more conciliatory way forward. In view of the gravitas, we are writing to you direct and not Stephen Hillier as you suggested. If you wish to arrange a meeting for a frank discussion or commence a more diplomatic approach, I suggest Stephen Hillier contacts Eileen Grace.        Yours sincerely,     David Evans  General Secretary LEAF     c.c. David Blunkett           Return to top of Page             David Evans, General Secretary  LEAF  126 St. Augustine's Avenue  Thorpe Bay  Essex SS1 3JF        Baroness Blackstone Minister of State  Department of Education & Employment  Sanctuary Buildings  Great Smith Street  Westminster  London  SW1P 3BT        24th December 1999        OPEN LETTER     Dear Baroness Blackstone,     The Effect of Directive 93/104/EC on the Holiday Entitlements of Staff in Colleges of Further and Higher Education.     Your letter of the 5th November 1999 states that it remains the position of the DfEE that Colleges of Further Education are not emanations of the State.      My letter of response of the 17th November questioned the Department's stance on this matter. You have chosen not to reply.     I now enclose a copy of a letter from the DfE dated the 15th October 1992 that was circulated to all Further Education Corporations [England and Wales]. The letter specifically states that the Acquired Rights Directive applies to the transfer of Further Education Institutions from Local Education Authorities to Further Education Corporations, and that the Directive will have direct effect.     You will be aware that European Directives can only have direct effect in relation to the State or an emanation of the State. It is therefore clear that the DfE itself has already conceded the position that colleges throughout England & Wales must be classified as emanations of the State. The DfE letter makes your rebuttal of the point all the more untenable. The proceedings currently before the Tribunal do not of course impinge upon the issue in hand and you cannot rely, as you have before, on deferring action on the basis that Ralton & Others is still in judicial process     This brings me to the matter of paid holiday entitlement of lecturers who are paid only for the work they do, which was the subject of my earlier letters to you. You will know from my previous correspondence that thousands of lecturers in the sector continue to be denied this entitlement, despite the fact that the National Regulations have been in force since the 1st October 1998.     For employees of an emanation of the State, entitlement to paid holiday commenced on the 23rd November 1996 when the Directive took automatic effect. Those lecturers who have been in the employ of a college since the 23rd November 1996, but have not received paid holiday since that date, are therefore owed three years holiday entitlement under the Directive.     The failure of colleges to comply with their legal obligations ultimately rests with you, especially when the failure is prevalent throughout the entire sector. Such uniformity can only be consistent with a strategic plan designed to evade obligations. Clear guidance and instruction is therefore required from you, so that the situation can be acted upon and remedied.     It is therefore entirely inappropriate that this matter should be dealt with on a college by college basis, which was an implicit suggestion in your letter dated 5th November. Regretfully, it is my considered view that this suggestion was simply an attempt to avoid attending to the matter.     You are the Minister responsible for Further and Higher Education. I ask you once again to you use the authority vested in your position to instruct Further Education Institutions to ensure that staff can enjoy their right in law to a paid holiday, which in many instances will have commenced on the 23rd November 1996.     Should I not hear from you by the 31st January 2000 with a satisfactory proposal as to how you intend to implement your obligations, it will be incumbent upon LEAF to take the necessary legal action to protect the mandatory rights of lecturers.     If for whatever reasons you reject our interpretation, it would be helpful that you provide a detailed response so that litigation can be kept to a minimum. In making this request I have in mind that you also have obligations under the Nolan Committee to use public funds prudently. If you have a defence, a detailed response now would mean that the legal arguments can be concisely and succinctly expressed without incurring unnecessary expense.     I look forward to your urgent response.        Yours sincerely,     David Evans  General Secretary LEAF           Copies to:     Malcolm Wicks     David Blunkett     Lord Irvine     John Cryer MP     Roger Casale MP     Siobhain McDonough MP     Commissioner A. Diamantopolou     Commissioner N. Kinnock     Diana Wallis MEP                   Return to top of Page