David Evans

General Secretary [LEAF]

 

TO ALL MEMBERS OF LEAF

18 September 2000

Dear Member,

IMPORTANT NOTICE - Ralton and Others -v- Havering College of Further and Higher Education

MESSAGE FROM THE GENERAL SECRETARY

On the 8th, 9th, and 12th of February 2000, the Appeal of the above important TEST CASE will be heard. The case will examine the lawfulness or otherwise of those college contracts of employment that replaced the Silver Book.

We firmly believe that when the evidence is properly considered, and the points of law raised in our Grounds of Appeal are examined, a Judgement will be made in our favour. The evidence, which will be re-presented, shall clearly and unequivocally show that the worsening of lecturers terms and conditions was planned at least two years before colleges were incorporated, and, that incorporation was the very hub of that plan. In other words, a causal relationship will be demonstrated between the change of employer [incorporation] and the worsening of lecturers' terms and conditions. The demonstration of this connection is pivotal to the success of the case. At that juncture, the employers' fate will be sealed.

The only hope the Colleges, the AoC and the Government has, is that LEAF will be destroyed financially. The only ground we hear from the employers' side, as a reason as to "why" we will fail, is that "LEAF can't afford it". YOU MUST NOT LET THIS HAPPEN.

LEAF began this action in 1994, when it became apparent that the terms and conditions of staff were to be wilfully wrecked. We said then, and we say again now, the employment contracts that obtain in further education today are unlawful. This is not a case of amateurs playing the "barrack room lawyer". From the inception of this action, we have been advised and guided by a very experienced City based firm of solicitors whose practice focuses on employment law, and by leading counsel who is a noted specialist in European law and a Fellow of King's College Cambridge.

We invite you to visit the Documents Section of the LEAF web-site and examine carefully for yourself, the Grounds for Appeal that were drafted by our Q.C. When you have done so, ask yourself whether a leading Q.C. would prepare such a scathing response to the earlier decision of the Employment Tribunal - which they will have to defend before a High Court judge - if they did not firmly believe that this action could and should succeed.

We formed LEAF as professional teachers, not because we are fanatics or dreamers, but hard headed realists with families to support. We have taken a very long and hard road but we are not depressed or disillusioned, because we know we are right. After six years we don't have to prove our commitment to our colleagues and our profession. We are very proud that we have created an independent and professional voice for lecturers' that puts your interests and those of you family first. So do the honourable thing, and support our action by actively encouraging your colleagues at your workplace and elsewhere to join LEAF.

It is absolutely critical to "our" success that you help to spread the word about LEAF's mammoth efforts on behalf of lecturers. Only in this way will we be able to generate a sound financial base to enable us to pursue the very important claims at hand, and the legal actions regarding your pension rights and other matters that affect you. Tell your colleagues about us, tell them to visit our web-site, and copy and circulate the information you receive from us. You would be surprised how many lecturers remain unaware of the action we were taking. Once they know what we are doing, they tend to become members of the Union.

If you would like me to visit your College, or any other convenient venue, to explain in detail the significance of the legal action we are taking, I would be delighted to do so.

Make arrangements for a visit now. I can be contacted by E-mail at leafunion@hotmail.com or by Telephone on (01702) 589529.

Kind regards,

David Evans

General Secretary [LEAF]

Return to top of Page 

COMPLAINT TO THE EUROPEAN COMMISSION:  

  

--ARTICLE 169 TREATY OF ROME-- 

  

  

Nature of Complaint  

  

Loss of entitlements under the Directive 93/104/EEC, suffered by lecturers employed by Further Education Corporations, resulting from the failure of the United Kingdom Government to transpose the Directive into national legislation within the prescribed time limits.  

  

The Further Education sector in the United Kingdom is comprised of more than 450 Further Education Corporations. These in turn employ in excess of 100,000 workers. Many thousands of lecturers are employed on term-time only contracts and are paid only for the work they do. They have not received their entitlement to a paid holiday, which has been their right since the 23rd November 1996.  

  

Other lecturers on continuing contracts of employment are paid for 38 weeks work each year. The remainder of the year is time in which they are not required to work.  

  

In making this Complaint under the Treaty, I rely on Case C-6/90 and Case C-9/90: Andrea Francovich v. Italy and Danila Bonifici & Others v. Italy, in which the Court ruled that:- A State is obliged to compensate damage suffered by individuals resulting from failure to implement directives.  

  

  

Summary  

  

a] The United Kingdom Government was in default of its obligations to transpose Directive 93/104/EEC into national law within the prescribed time limits.  

  

b] Directive 93/104/EEC became automatically effective on the 23rd November 1996.  

  

c] In the law of the European Union, directives have direct effect in relation to employees of the State, or employees of an emanation of the State.  

  

d] In the United Kingdom, Further Education Corporations have been conceded to be emanations of the State. Directive 93/104/EEC therefore has direct effect.  

  

e] On the 5th of October 1992, a Consent Order was made in the High Court of the United Kingdom to the effect that European directives would have direct effect in relation to Further Education Corporations.  

  

f] On the 15th October 1992, the Department of Education, a Department of the United Kingdom Government, communicated the High Court's ruling to all Further Education Corporations, by a letter advising them of the position under European law.  

  

g] In July 1999 in a national Employment Tribunal, it was conceded that a Further Education Corporation is an emanation of the State.  

  

h] Regardless of these concessions, the United Kingdom Government has refused to accept that lecturers employed by Further Education Corporations are employees of the State, and that the entitlements of these workers under Directive 93/104/EEC commenced from the 23rd of November 1996 when the Directive took automatic effect.  

  

i] As a citizen of a "member state" of the European Union, I respectfully request that the Commission bring proceedings against the United Kingdom in respect of damages for loss of entitlements accruing to lecturers in Further Education Corporations, from the 23rd November 1996. All other national avenues for redress have now been exhausted.  

  

j] I rely on Case C-6/90 and Case C-9/90: Andrea Francovich v. Italy and Danila Bonifici & Others v. Italy, in which the Court ruled that:- A State is obliged to compensate damage suffered by individuals resulting from failure to implement directives.  

  

  

Background  

  

On the 15th October 1992, a letter from the Department of Education was circulated to all Further Education Corporations [England & Wales].  

  

The letter concerned the proposed transfer of employer from Local Education Authority to Further Education Corporation, pursuant to the Further & Higher Education Act [1992]. The letter made clear to the transferees that, Directive 77/187/EEC, would apply to the transfer and said the Directive would have direct effect.  

  

The content of the letter instructing Further Education Corporations of their status in Community law was stimulated by a Judicial Review of the 5th of October 1992 brought by the National Association of Teachers in Further & Higher Education. The grounds for the Judicial Review were that the Further & Higher Education Act (1992) failed to comply with the United Kingdoms obligations under the Acquired Rights Directive.  

  

In the light of the ruling in [Stichting -v- Bartol & Others (1992)], the High Court agreed a Consent Order containing the following declaration:- "That the provisions of Directive 77/187/EEC, and in particular Articles 3(2) and 6 of that Directive, apply and have direct effect in relation to the proposed transfer of Further Education Institutions from Local Education Authorities to Further Education Corporations pursuant to the Further & Higher Education Act 1992" . 

  

In European law, directives can only have direct effect in relation to employees of the State, or an emanation of the State. All parties were therefore aware that, following the transfer of employer on 1st of April 1993, Further Education Corporations in England & Wales would be construed as emanations of the State.  

  

In September 1994, a number of employees of Havering College of Further & Higher Education complained to an Employment Tribunal that their terms and conditions of employment had been seriously degraded following the transfer of employer.  

  

They claimed that the variation to their contracts was causally connected to the transfer of their employment from Local Authority to Further Education Corporation. Part of their submission to the Employment Tribunal in this case which is known as Ralton & Others -v- Havering College, was that the College was an "emanation of the State". These proceedings were "stayed" pending appeals in other unrelated cases.  

  

An Employment Tribunal eventually heard Ralton-v- Havering College, on various dates during the course of 1999. At the Tribunal hearing, the employer's side conceded that the College was an emanation of the State. This concession is recorded in the Decision of the Employment Tribunal.  

Following the concession in the Employment Tribunal, I wrote to the Minister of State for Further & Higher Education. My letter said that, as employees of an emanation of the State, Further Education lecturers had been denied their entitlements to paid holiday since the 23rd November 1996. I also said that I hoped the Minister would use the powers vested in her position to ensure that Further Education Corporations complied with the law.    

The Minister's response stated that, "the Department of Education & Employment does not consider Colleges of Further Education to be emanations of the State". The Department for Education and Employment's construction of the legal realities of the Further Education Corporation, has shown a clear and uncompromising disregard for Community law.  

  

i] The Department has shown a flagrant disregard for the concession made in the Employment Tribunal of Ralton & Others -v- Havering College.  

  

ii] The Department has failed to acknowledge the effect of the High Court's Consent Order of October 1992.  

  

iii] The Department has failed to acknowledge the letter sent to all Further Education Corporations on the 15th October 1992 by it's predecessor Department, the Department of Education. The Commission will see from my correspondence with the Minister of State that, even after the Working Time Regulations were belatedly introduced into national legislation, many thousands of lecturers did not and still may not receive their entitlement to a paid holiday.  

  

  

Other Practical Steps Taken  

  

In December 1996, contiguous with Directive 93/104/EEC becoming automatically effective, I wrote to principals of Further Education Corporations across the United Kingdom and to the Association of Colleges, the representative body for further education employers. In my letter I stated my contention that Further Education Corporations were emanations of the State and that the entitlements applicable under the Directive should take immediate effect.  

  

The employers' response, individually and collectively, was that Further Education Corporations were not emanations of the State, and that the Directive did not have direct effect. The employers therefore categorically refused to acknowledge that the Directive had direct legal effect for employees of Further Education Corporations.  

  

I wrote to the Principal of Havering College of F&HE and to the Association of Colleges on the matter outlined in this Complaint, following the concession made in tribunal, that the College is an emanation of the State. My claim that lecturers employed in Further Education Corporations are entitled to their rights under the Directive and have been since the 23rd of November 1996, have simply been rejected.  

  

Having exhausted all national avenues to remedy this injustice, I now ask the Commission to bring proceedings against the United Kingdom to remedy this matter.  

  

I seek damages for the loss of my rights and those of my colleagues employed in Further Education Corporations, who have been denied those rights as a consequence of the United Kingdom's default in transposing Directive 93/104/EEC.  

  

The United Kingdom's continuing intransigence in the matter is further evidenced by its failure to observe concessions that have been made in the national courts.  

  

I wish the Commission to be clear that I want this matter to be dealt with openly and therefore do not wish to reserve confidentiality. I also reserve right of access to all communications between the Commission and the United Kingdom on this matter.  

  

  

Signed: The Twenty-fourth Day of April 2000  

  

David Frederick Evans  

General Secretary, LEAF 

  

  

  

  

Return to top of Page  

  

 

 

 

 

 

Mr J. L. C. Pratt  

[Chair of Governors, York College]  

The Lodge  

Lilling  

York  

YO6 1RR  

  

7th April 2000  

  

  

Dear Chairman,  

  

We refer to the Further Education Funding Council Circular 99/30 regarding Instruments and Articles of Government: Modifications. We wish to confirm that the governors of York College have passed a resolution adopting the modifications to their articles of government at the first meeting of the corporation on or after 1st August 1999 [Page 6, Paragraph 30].  

  

It was also recommended that all members be provided with a copy of the Modification Order and Direction. As a matter of public record, we would be obliged if you could forward a copy of the minutes for the meeting that ratified those new articles of government. At this same meeting of governors it is stated (Paragraph 31) that the corporation must determine the new Constitution of the Corporation by agreeing the total membership, the categories of member to be appointed, and the numbers of member in each category. Could you please confirm this has been done?  

  

We have taken steps to ascertain whether the College has made any approaches to North Yorkshire Council, or York City Council to elicit appointments for local representation to the College governing body. We can find no such evidence and therefore ask you to confirm whether approaches have been made. You will of course know that the College is legally obligated to do so under Paragraph (18b), and if approaches have been made, what time-scale can we expect the implementation of the appointments? If the prescribed steps have not been taken, to ensure that the governing body is composed as is required by law, then it is highly desirable that the governors and the governing body re-examine their position(s) in the light of their joint and several liabilities, given recent events. This may mean reconvening a properly constituted governing body and reviewing all policy decisions taken since 1 August 1999.  

  

Decisions taken outside the newly defined legal constitution of the governing body, could be regarded as questionable if not unlawful, and could have serious implications for the College, the governing body, and for individual governors. This is particularly so where an attempt is being made to rush through redundancies without consultation with regional partners in post-16 education, and in a case where a s.188 was issued without prior consultation with the recognised trade unions. We further understand that due to the hurried nature of this action, the College has failed to conduct a detailed risk analysis. An itemised costing of the dismissals has not been forthcoming. Where compulsory staff dismissals will be challenged, and compensation and damages sought, unconstitutional acts could be interpreted to the detriment of those responsible for establishing and agreeing policy.  

  

The Government has emphasised that FE governors have no protection under the law for personal liability in the case of proven financial mismanagement or other professional misconduct. If governors have acted in good faith and there has been unfortunate third party non-performance, e.g. the bankruptcy of an external contractor or supplier, then the circumstances would mitigate liability accordingly. However, in a case where an attempt to circumvent clear and applicable Government legislation can be identified, then the liability of governors may be called into question.  

  

Apart for the claims that may yet be forthcoming under European law, colleges already have unfulfilled legal obligations as emanations of the State; see the concession made in Ralton & Others -v- Havering College and the implications of that concession for effect of Directive 93/104/EC. Further, a favourable decision in the above proceedings will inevitably lead to substantial claims for breach of contract. You should be left in no doubt that LEAF will pursue such claims vigorously.  

  

We are sure that you must have considered that the College and its policy makers may also find they come under scrutiny from their local and regional partners. It seems to us that this could arise from the College's performance of its contractual obligations to provide complementary post-16 education. The degrading of the academic establishment qualified to provide this level of education, it would seem to us, could be a core issue of contention.  

  

We are certain that you will be aware that students at South Thames College have been granted Legal Aid to pursue a case against that institution. The information available to us suggests that the action is related to alleged non-performance in the delivery of course content, and the apparently poorly perceived value of the qualifications in employers eyes and an alleged lack of substantive skills present in the curriculum. Lack of tutor supervision is cited as a continuing problem. These examples illustrate the changing perceptions active in the environment in which our members work, and clearly demonstrate that full legal and financial redress will be sought by all parties, to restore a sense of equilibrium in a profession that is a fundamental cornerstone of society's future survival and development.  

  

  

Yours faithfully, 

  

David Evans 

General Secretary LEAF 

  

  

c.c. Rt. Hon. David Blunkett M.P.  

  

Hugh Bayley M.P.  

  

John Cryer M.P.  

  

Phil Willis M.P.  

  

Governors of York College  

  

York LEAF membership  

  

Representatives and lecturers  

  

A. J. Hows and Associates 

  

  

   

  

Return to top of Page  

  

  

 

 

 

 

G. Hollands 

Chief Executive 

West Kent College  

Brook Street  

Tonbridge  

Kent  

TN9 2PW 

  

BY FAX & POST  

  

30th March 2000 

  

  

Dear Mr Hollands, 

  

Your Proposal to Transfer Silver Book Contract Staff to New Contract  

  

LEAF represents a growing number of lecturers at West Kent College, and lecturers in more than one hundred colleges across the sector. We have copies of your correspondence relating to your proposals to cause Silver Book staff to sign a new College contract, and a sample copy of that contract. 

  

In your communications to affected staff, you say that you intend the new contract to take effect from the 1st April 2000, and have asked those staff to sign and return a copy of the contract to your personnel department by the 3rd of April. In effect, you are asking these lecturers to consent to the variation to their terms and conditions under the threat of dismissal. You will no doubt be aware that the right to notice of these staff, under the terms of the Silver Book national collective agreement, which is incorporated into their individual contracts, is set out in Section 5 of that document. Sub-section 5.2 quite clearly states that a lecturer is entitled to not less than four calendar months notice of termination, before the end of the Summer Term.  

  

With regard to the reasons you have put forward for transferring staff to the new contract, we do not accept the grounds you have advanced as being either sufficient or valid. We are aware that the reasons you have put forward are, in a number of respects, congruent with those advanced by the employers in the Employment Tribunal case of Dorney & Others -v- Chippenham College [1995]. The Chippenham case was considered to have no relevance to the substantive issues underpinning the variation of lecturers' terms and conditions in the important test case of Ralton & Others -v- Havering College [1999]. That decision is imminent.  

  

We wish to make it clear that we will challenge, at law, any dismissals of our members that are made for the reasons you have given, and very much hope it will be unnecessary for us to take this course of action. We would, however, like the opportunity to meet with you to discuss our concerns. We look forward to hearing from you.  

  

  

Yours sincerely,  

  

David Robinson 

National Officer, LEAF 

  

  

  

Return to top of Page  

  

  

 

 

  

The Principal 

York College 

Tadcaster Road  

York YO24 1UA  

  

6 March 2000 

  

  

Dear Principal, 

  

I write in response to your letter of 7th February 2000, entitled "Redundancy Consultation". In my capacity as National Council member of LEAF, which has a number of members whose jobs are threatened by your proposals, I wish you to know our views, and the action we propose to take in response to your proposals. 

  

At a meeting of LEAF members at this site, held on 17th February, a resolution relating to recent events was discussed and unanimously agreed ----that the fellowship propose a vote of no confidence in the Principal, Management and Governors of this college.  

  

With regard to your notice of proposed redundancies, under Section 188 of the Trade Union and Labour Relations (consolidation) Act 1992, we do not accept your reasons for the proposed redundancies, identified in paragraph 1.1 and 1.2, as being either sufficient or valid. In brief, our explanation is as follows: 

  

  

(A) Cost Savings of £600,000 to be Achieved In Part by Staffing Redundancies:  

......The Wrong Approach 

  

At the most conservative calculation, i.e. those which might support your calculations, the staffing reductions you propose would result in a surplus of £1 million after one year. If your proposal is really to achieve a "balanced budget" (your words), then we propose a revised cost saving plan which will achieve a balanced budget, with an acceptable surplus, over the next three years. A detailed alternative will be proposed. 

  

  

(B) Wasteful and Unnecessary Expenditure Must be Curtailed: 

  

We consider that the "overspending" is a product of management miscalculation. There is clear and substantial evidence of excessive expenditure which could be curtailed in a better climate of cost control: 

  

i) Senior staff perks, cars and refurbishments etc. 

  

ii) Expenditure on external consultants when the skills utilised exist in the institution. 

  

iii) Poor spending decisions in the area of publicity etc. 

  

iv) Lack of effective cost control and accounting measures throughout the organisation. 

  

  

(C) Redundancies Are Inappropriate in the Light of Recently Announced New Settlements for FEFC Funded Work. 

  

In the context of the proposed expansion of work available in the sector, retrenchment of the kind you are proposing would not only be inappropriate, but could be positively harmful to the medium term security of the College. Briefly, the Minister has, in the past few weeks, announced additional funds which are to be made available for funded work as set out below. 

  

i) FTE 16-19 Students - and additional £57 million (2000-2001) 

  

£60 million --(2001-2002) 

  

ii) FTE (over 19) students --an additional £112 million (2000-2001) 

  

£180 million --(2001-2002) 

  

iii) Capital and IT Projects - £95 million - (2000-2001) 

  

£180 million --2001-2002) 

  

iv) Standards Fund --£80 million - (2000-2001) 

  

£160 million --(2001-2002) 

  

v) Support for Students - This figure is to be expanded to £85 million next year. 

  

  

It is certainly the case that the Corporation was unaware of these extra monies, when the decision was taken to embark on the course of action you have notified. We should like to review your proposals in this light for the following reasons: 

  

a) The monies are available to all colleges that bid for them under FEFC guidelines. 

  

b) The monies which are additional to existing commitments, require additional staffing, since they are prefaced by increased teaching-based activity. 

  

c) The funding would require experienced teaching staff to deliver the work, and support staff to bid for and administer the workload. 

  

  

We would wish to enter serious discussion with you in order to reach agreement on how York College can access those additional funds. It is our considered view that the kind of retrenchment you are proposing would not leave the College in a position to take advantage of this newly announced upturn in funding, but may paradoxically leave the College vulnerable to further downsizing. We would therefore like to put forward proposals which will enable these new monies to be bid for. 

  

  

(D) Rationalisation of Land and Other Assets: 

  

We point out that according to your own Annual Report, college land and building assets are valued at over £26 million. In light of the proposed industrial/commercial development occurring as a by-product of the new Copmanthorpe/A64 slip road and the local land-fill site, there are opportunities for profitably realising some gains from rationalising real-estate by sale of assets and rebuilding within a tighter campus boundary. This is particularly true since the assimilation of the Sixth Form site.  

  

We understand there have been proposals in the past to incorporate the Yorkcraft site into the campus. If there are ongoing opportunities for creative solutions already under discussion here then we could support those.  

  

Despite your opinion to the contrary, it appears the Sixth Form merger has caused problems, one which you quoted, being falling enrolment at that site in 1997-98. This was a predicted outcome, due to parental anxiety for standards being maintainable under the new regime.  

  

Future closure and sale of this site could make considerable savings, and allow targeted refurbishment, redevelopment, and redeployment to occur centrally. We understand, however, that considerable sums have already been spent on refurbishing personal management accommodation at the Sixth Form. 

  

If there are problems in realising capital assets as you suggest, inasmuch that such funds could not be made legally available for revenue shortfalls, then this still provides you with the necessary credits to refurbish or add to capital assets in areas that you say you cannot do at present, as revenue is dedicated to staff salaries. By releasing capital to support infrastructure investment, equipment upgrading, and improvements to accommodation, you could both satisfy statutory requirements AND release normal revenue to maintain standards in educational provision. 

  

  

(E) Amortisation of Budget Deficit 

  

We propose a three or four-year financial plan to reduce deficits by a combination of all of the above measures. 

  

  

(F) Recomposition of Governing Body and the Restructuring of Directorate (Senior Management Posts) 

  

We believe that the measures necessary to both reduce the deficit and restore the confidence of staff, students, business clients and others will require a repositioning. This is particularly relevant in light of the fact that the college has not yet appointed governing representatives from North Yorkshire County Council, York City Council, or the regional TEC, which it has a statutory responsibility to undertake. Unilateral decisions taken without this representation have questionable validity, and college governors, as we know from recent press coverage in the 'Guardian', carry personal financial liability for the outcome of their actions. 

  

This letter constitutes the basis of the response by the LEAF branch at York College to what we consider to be an ill-judged proposal to reduce the staff complement.  

  

LEAF do not accept that redundancies are called for and that the proposals to substitute forty academically qualified or experienced lecturers with thirty-three grey "instructor" level grades in no way can be regarded as redundancy since the workload will still be present ie: the work has NOT disappeared.  

  

During a recent meeting with staff, the question was raised as to whether you would go ahead with redundancies if there was no apparent financial problem. You emphatically made the point that redundancies would happen under any circumstances.  

  

We understand this to mean that you have prejudged the issue, that you are not prepared to undertake any real consultations, and that you are prepared to downgrade coursework standards at any cost. It is about a questionable restructuring undermining the financial foundation of the college. We believe that degrading the level of student interaction with professionally qualified and experienced people, will cause a spiralling fall-off in recruitment, attendance, retention and its concomitant funding, greater than we have even yet endured.  

  

However, we wish to engage in constructive discussions in order to explain our proposals in greater depth. When you and your colleagues have had the opportunity to consider these outline proposals, I would be pleased to make arrangements for our team to meet with you to take the proposals forward. 

  

If you are unwilling to engage in constructive discussion on this matter, it would be our intention to ask the Secretary of State to intervene, using his powers to ensure that the range of Post-16 provision remains available at York College. 

  

  

Yours sincerely, 

  

Jan Kaliciak 

Director of Communications, LEAF 

  

  

Copies to:  

  

Chairman of the Governors 

  

DfEE 

  

Hugh Bayley MP 

  

John Cryer MP 

  

Phil Willis MP 

  

  

  

Return to top of Page  

  

  

 

 

 

  

The Principal 

Havering College of Further and Higher Education 

42 Ardleigh Green Road 

Hornchurch 

Essex 

RM11 2LL 

  

29th January 2000 

  

  

Dear Principal, 

  

The Effects of the Working Time Directive - Employees of Further Education Colleges 

  

In consequence of the admission of Counsel for the Association of Colleges that Colleges of Further Education are emanations of the State, I am writing to you regarding the effect of the Working Time Directive upon the employment of lecturers at Havering College. You may be aware, the DfEE has publicly expressed an interest in examining instances of any college's non-compliance with the requirements to give employees their paid holiday entitlement, as required by Directive 93/104/EEC and its domestic law equivalent The Working Time Regulations, (TES FE Focus 28th January 2000). 

  

Lecturers employed on Silver Book contracts, like myself, 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 the College 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 transposed the Working Time Directive into domestic law on 1st October 1998, 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 not be aware of the judgment 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. That is because it is not open to the State or an emanation of the State, to rely upon an option it had not exercised. 

  

It is now incumbent upon you as Principal, to take immediate action to ensure that lecturers in the employment of the College receive their lawful right to four weeks paid holiday. 

  

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. The Association of Colleges 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. 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 note with interest that the three days pay deducted from my salary for January is calculated on a thirty-eight week working year. 

  

I would appreciate it if you would contact me shortly in order that we may discuss and agree a way in which the College is made able to comply with their lawful obligations. I must stress however, that I shall not accept a refusal to acknowledge this claim, nor any undue delay on acting on the contents of this letter. 

  

  

Yours faithfully, 

  

David Evans 

General Secretary LEAF 

  

  

copies to:  

  

Baroness Blackstone 

  

John Cryer M.P. 

  

Bruce Picking 

  

Stanley Rose 

  

  

  

  

 

 

Return to top of Page