Correspondence 2002

Ms. Odile Quintin
Director General
Employment & Social Affairs
European Commission
B-1049 Brussels
Belgium

3rd March 2002

Dear Ms. Quintin,

COMPLAINT REFERENCE 2001/5005, SG2001 A/11176

I am writing in response to your letter of the 5th February 2002 informing us that your services will be proposing that the Commission terminate this case. You invite us to supply further information, which might cause your services to reconsider its decision. In this regard I wish to draw your attention to a letter we received from Mr. Giorgos Glynos dated 17th January 2002, in which he asked whether we felt that a meeting with the Commission’s services would be helpful, and our response to his offer which is recorded verbatim below.

“We believe a meeting would assist the Commission’s services to understand the factual background to our complaint against the United Kingdom. Further, a meeting would provide the opportunity to make available the full file of evidence. You are advised that we may wish to be accompanied by leading counsel”.

Unfortunately, throughout this matter the Commission’s performance has been characterised by consistent failures to respond to communications. Needless to say, no response was received in regard of our request for a meeting. The next communication we received was your letter of 19th February proposing that the proceedings be terminated.

We repeat here that we continue to want a meeting with the Commission’s services, in order to assist the understanding of its officers in regard of the complexities of what is clearly a major legal sleight of hand by the Member State, and to place in their hands further critical documentary evidence.

Your letter of the 5th February 2002 to our solicitor, Mr A. J. Hows states:

“In principle the national courts constitute the framework for dealing with conflicts relating to the incorrect application of Directive 77/187/EEC”.

Contrary to your statement, the Commission “is” responsible for ensuring that Community law is correctly applied by the Member State under Article 226 of the EC Treaty; Article 88 of the ECSC Treaty and Article 141 of the Euratom Treaty.

You refer in your letter of 5th February [paragraph 4] to the key question as to whether or not there was a causal link between the transfer itself and post transfer contractual change. As with the approach of the national courts, you completely disregard the mass of evidence that unequivocally shows there to be, not simply an “envisaging of changes” to employment contracts post transfer as per [Article 6 ARD], but unequivocal evidence of a pre-transfer blueprint for post-transfer contractual change. I have quoted in correspondence at least one verbatim account of a ministers statement to Committee [F] in 1991 in which he says:-

“The purpose of Clause 26 is to transfer contracts of employment. It is right that staff transferring to the new corporations should have such contracts safeguarded, as is set out in the Clause. It is entirely another matter to extend such a principle to any collective agreement which may have been entered into by a previous employer. That might significantly constrain the new corporations’ freedoms to manage their affairs in an efficient and cost effective manner”. [Lord Cavendish of Furness - Committee [F] - Further and Higher Education Bill 12th December 1991 - Column 909]. There is much more evidence identifying the position pre & post-transfer that can be made available to the Commission.

Your letter makes play of the question of whether or not the transfer was the “sole” reason for the change. To put the question another way round, there is of course no other explanation for the changes to the contracts of staff other than the transfer. There were no ETO reasons for the changes. Further simple analysis will reveal that contractual change was an inextricably related consequence of the Government’s pursuit of the objectives that underpinned the transfer. You cannot have the twin objectives of vastly increasing student numbers, [30%] while reducing unit costs, [27%] without a vastly increased workload for Lecturers - which could only mean new and worse contracts of employment. The Commission will not be allowed to avoid this critical question, as did the so-called competent national court.

Further it is impossible to reconcile your view that our complaint does not constitute a generalised practice in breach of Community law. You complain in your letter that your services have received a great number of letters from Lecturers, and from their MEPs. These letters confirmed that what had happened to the staff in the test case, had also happened to them. The letters emanate from academic staff employed by colleges’ of Further Education right across the Further Education sector.

Further, the central charge in our complaint is that the United Kingdom took the remarkable step of creating an Act of Parliament “enabling the circumvention of its Community law obligations”. It is difficult to see just how much more generalised a practice can be.
In any event, where legal action is taken against the State, or an emanation of the State, there is a serious question as to whether the Tribunal Service in the United Kingdom can lawfully adjudicate in claims made by public sector workers.

I therefore wish to address the question of your reference to the role of the competent national courts at paragraph [6] -final sentence of your letter dated 19th February 2002.

During the month of April 2000 the attention of the Commission’s services was brought to the case of T. Smith v. the Secretary of State for Trade & Industry [EAT 1999]. Indeed, a summary of the case was faxed to Mr. Gonzalez Dorego of the Commission’s services - the full text of the Judgment being available on the Employment Appeal Tribunal’s web-site.

This case identified the fact that the Tribunal Service in the United Kingdom could not be regarded as impartial and independent, because of the proximity of the Service to an executive arm of government. The following brief list sets out the problem:-

1. Lay members of the employment tribunal are appointed, discharged and paid for by the Secretary of State.

2. The Department of Trade and Industry provide funds to the Employment Tribunal Service (‘the agency’) which provided the administration services for employment tribunals.

3. Tribunal chairmen are appointed by the Lord Chancellor but paid from funds made available by the Secretary of State.

4. The rules for tribunals were made by the Secretary of State who had “wide powers to intervene in cases to which he was not a party”.

5. The right to appeal to the Employment Appeal Tribunal (‘EAT’), the members of which were partly paid by the Secretary of State and which was administered by the same agency, is limited to correcting errors of law.

Therefore, the Employment Appeal Tribunal’s ability to correct important factual errors is essentially non-existent.

You will of course be aware that under Article 6(1) of the European Convention on Human Rights (‘the Convention’) and the Human Rights Act [1998], citizens’ are entitled to a fair and public hearing by an independent and impartial tribunal. Given the difficulties set out above, you must surely understand that these give rise to serious and troubling questions as to the competence of the national courts to deal with conflicts involving the incorrect application of directives. A conflict of interest arises in this situation, which is akin to the reasons that lay behind the vertical-direct effect of directives in the case of employees of an emanation of the State. Indeed there is a serious question as to whether employment tribunals in the United Kingdom can properly and lawfully adjudicate on claims made against the Secretary of State or indeed lawfully adjudicate in any case involving a public service worker. There are therefore circumstances, ours being one, in which the National Court’s competence to lawfully adjudicate is brought into question. The Commission was advised of this situation in April 2000.

Paragraph [1] [second sentence] of the Explanation of Proceedings for Non-compliance with Community law states;

“Non-compliance means failure by a Member State to fulfil its obligations under Community law. The term State is taken to mean the Member State which infringes Community law, irrespective of the authority - central, regional or local - to which compliance is attributable”.

Havering College of Further & Higher Education, which was conceded to be an emanation of the State at the first tribunal hearing, must surely be construed as an “authority” that is “local” in the context of paragraph [1] above.

It has been made very clear in our formal complaint that, under cross- examination, the principal of Havering College conceded that he had misled staff. He did so by sending staff a letter that caused them to believe that the College would suffer severe financial penalties, which would in turn destabilise the College’s finances and threaten the employment of staff, unless “all staff” signed a new and worse contract.

That was clearly wrong as is identified in the formal complaint, because the United Kingdom Government could not have lawfully demanded, under the threat of financial penalty, that colleges force staff onto new and worse contracts, when their terms and conditions were protected by Community law. It was suggested at tribunal that the principal’s misleading letter to staff was an error.

We have in our file of evidence, a sample of a number of other misleading letters sent to staff. Principals of colleges across the United Kingdom wrote these letters. The Havering College example, as cited in the Tribunal cases and in the formal complaint to the Commission, was not therefore an isolated instance of staff being misled into giving up their protected rights. It was a nationally co-ordinated effort, conceived by, and carried out under pressure from the United Kingdom Government. Indeed a generalised national practice, the purpose of which was to mislead

Paragraph [6] of your letter of 5th February 2002, tells us that the Commission is firstly responsible for ensuring that Community law is properly applied by Member States, that EU Directives are properly transposed, and, that they are not contravened by generalised national practices. The paragraph continues by explaining that the Commission’s role is not to intervene in individual cases of an alleged violation of the rights arising from Community law.

We reiterate that our complaint is not, as you suggest, a complaint from or about an individual person or institution. It is precisely because the worsening of terms was co-ordinated on a national basis that the tribunal (which otherwise disagreed with us) accepted that the case was “in the nature of a test case”. The evidence we hold on file enlarges upon and proves this truism.

Every college in Britain was similarly affected, and every serving teacher employed on the date of transfer subjected to the same process. We wish the Commission to see and consider this compelling evidence, including irrefutable evidence that the employers’ organisation mendaciously issued false and misleading information to every serving teacher regarding their position following the transfer. We assert this fact now to the Commission, and invite them to peruse the evidence. If the Commission chooses not to do so, it will have to accept the charge that it has effectively pre-judged the complaint to the advantage of the UK Government, and to the disadvantage of the staff. Knowledge of this will have incalculable consequences for the European Commission’s credibility.

Further, you must be aware that the penultimate sentence of paragraph [6] of your letter to us of 5th February is logically incompatible with your apparent complaint in paragraph [3] of your letter to us dated 19th February. In that paragraph you refer to the great number of letters from Lecturers’ and members of the European Parliament that your services had received.

The letters’ to which you refer, provide “numerous clear examples” of how staffs nationally were affected by the transfer of their colleges from local authority to statutory corporation. These letters tell of the imposition of new and worse terms, and/or of the eventual capitulation of staff as a consequence of severe economic duress, the ruination careers by way of being refused progression unless they gave up their transferred rights, and the diminution of their pension rights as a consequence of a now eight year long pay freeze.

All of this was suffered because Further Education Lecturers’ believed that Community law protected their employment rights. That protection now appears to have been proved worthless by the so-called competent national courts and which protection is now on the verge of being trashed by the European Commission’s own services. It is frankly an appalling state of affairs and unless the political will is found, will inevitably lead to a massive injustice for thousands of Lecturers and their families in the United Kingdom.

If the Commission promulgates a purposeful Directive, and EU citizens seek its protection, then their interests must be protected. Many thousands of staffs have done this, only to find that they have been either picked off, or left to wither on the vine. Many complaints have been made over the past seven/eight years, and no proper response has been forthcoming. The decision of the UK tribunals must be reviewed because it renders the protection of the Directive null and void. This cannot be consistent with the ARD. We have used the national legal route to seek the protection, and that avenue is now exhausted.

The failure of the Commission to act will send a clear signal that Directives can be ignored.

As with Directive 93/104/EEC, our case represents a clear attempt by the UK Government to avoid protection. The Commission is in too great a hurry to protect a national government when its primary task must be to protect its citizenry. There is in fact no other avenue open to a serving UK teacher who has been forced from his transferred terms and conditions and denied pay increases for eight years for taking ‘advantage’ of the Directive - other than a complaint. This complaint, on behalf of an entire group of workers, is just that. The only options to serving staff are to give up those rights, as many have, and accept worse terms and conditions brought about by the transfer, or resign and claim a constructive dismissal. It cannot be right or consistent with EU protection that a citizen has to give up their collectively agreed rights in order to seek to prove their existence.

On the matter of collective agreements, in the United Kingdom the fact that collective agreements are presumed to be unenforceable at law, renders entirely ineffective all those aspects of the ARD that relate to collective agreements. That is so even where such agreements are given legal force through their incorporation into individual contracts of employment. The Employment Appeal Tribunal refused to make a Reference to the European Court of Justice to determine whether there was a Community law meaning for the phrase “collective agreement”. We invite the Commission to consider whether, in permitting such a state of affairs to develop and to continue, the United Kingdom is complying with its obligations under the ARD and with the general duty of co-operation imposed upon it by Article 10 EC (ex Article 5).

Mr. Stephen Hughes MEP told us the Commissioner would not meet with us on the 4th December 2001, but instead met with a group of MEPs. As early as November 2001, we were informed by one of these MEPs, Mr. Garry Titley, that the Commission would reject our complaint. This turned out to be exactly right.

The Commission could not possibly have properly considered our case in the few weeks between receipt of the complaint and the information received by us in early November. We have further suspicions that the Commission has been influenced unduly by high level representations made on behalf of the UK Government, aimed at seeking the rejection of our valid claims.

The Commission has not considered the merits of this case in its entirety. When viewed properly, a fact the Commission is reluctant to concede though it is demonstrably true, this case represents a blatant attempt by the UK Government to remove the protection of the ARD. The entire body of evidence must be examined to appreciate this fact, which is only apparent with the benefit of hindsight. It is not a sufficient explanation to complain that there are too many documents to deal with.

If the Commission’s services want our assistance to understand the complaint, we are and always have been, very happy to help. However, we will not accept laziness or incompetence as a ground for failing to act on our complaint. If you have clear reasons why the complaint cannot be pursued, you must let us have them. Nothing that has been said to date falls into the category of a substantial reason for the Commission’s dismissal of our complaint.

We seek a meeting to discuss this matter as has been requested by us on a number of occasions, and which most recently was offered by Mr. Glynos, and at which the complete file will be made available.

Yours faithfully,

David Evans