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SEPTEMBER 1999
- AoC train halted....
- LEAF on the track!
- Massive compensation claims ahead for Silver Book and 'New' Contract Staff
- MEMBERS of LEAF to be advised of the possibility of proceeding with immediate County Court Claims
- NON-MEMBERS are advised to join LEAF without delay, to take advantage of this process, and to receive the proper professional guidance
- THIS IS THE CASE YOU HAVE ALL BEEN WAITING FOR!
- Significant developments have been taking place this Summer in LEAF's campaign to defeat the exploitative CEF/AOC contracts, and the pay freeze of Silver Book staff.
- The long awaited National Test Case was held between 26th July and 2nd August 1999.
- It was the first time the new and worse contracts had been challenged using European law. The result was six dramatic and potentially far-reaching days of examination of the issues. The six days of evidence revealed considerable deficiencies in the employer's legal and factual arguments.
- Three further days have been set aside for legal matters on issues of European law.
- We expect a decision early next year.
- EMPLOYERS CONCEDE THAT COLLEGES ARE EMANATIONS OF THE STATE
- On the first day of the hearing the employer's side conceded that under European law, colleges are emanations of the State.
- In essence this legal expression means that, regardless of their legal status as so-called independent corporations, colleges are "public sector organisations" and are all part of the "same service".
- We will describe later the important implications of this legal concession for lecturers.
- BASIS OF OUR CASE
- In summary, our arguments were that the worsening of lecturers' terms and conditions was unlawful, because the changes to lecturers' contracts are connected to the transfer of colleges from local authority control.
- Success on this point will mean that the new terms will be void and of no effect.
- Further, because the worsening of lecturers' terms and conditions occurred almost simultaneously throughout the further education sector, our success in the Havering Test Case will have important consequences for lecturers in every other college throughout the United Kingdom.
- SIX DAYS OF EVIDENCE REVEALS STAFF WERE MISLED
A key reason used by the employers as a ground for forcing lecturers off their Silver Book contracts has been the threat of holdback of funds by government.
- Our lawyers clearly demonstrated that this did not apply to lecturers who were employed by the college before April 1993.
- The principal of Havering College, under cross-examination, conceded he had misled staff on this matter.
- The Tribunal duly recorded the principal's admission.
- Our evidence on the background to the changes to lecturers' contracts was clear and unassailable. It was founded on comprehensive documentary records running to some 800 pages of crucial evidence on events pre- and post-incorporation.
- REMEMBER CHIPPENHAM?
Many of you may recall the Chippenham College case that NATFHE lost in 1995. The Chippenham decision of course, heralded an era of widespread threats to dismiss lecturers unless they signed a new and worse contract.
- A key reason submitted by the employers as a ground that the decision to dismiss the lecturers involved was fair, was that the Government had threatened to withhold funds unless they got their staff off the Silver Book terms.
- That case would not, in our view, have succeeded if European law had been applied. Even without a formal decision as yet, LEAF have now effectively demonstrated that holdback could not have been a substantial reason for dismissing staff who were employed before April 1993.
- As we have frequently said, the Acquired Rights Directive protects these staff from variations to their contracts. Now you have the evidence for our assertion....the previous government could not use holdback to force "existing staff" off their contracts.
- College principals however, did the job for them.
- CLAIMS FOR COMPENSATION AND DAMAGES
The cases before Tribunal relate to staff who were caused to sign a new contract of employment.
- The case raised the question of denial of pay increases and career opportunities for those who remain on Silver Book contracts, but none of the Applicants were still on Silver Book terms.
- LEAF will therefore shortly be advising those members, who remain on Silver Book terms, to bring County Court proceedings for breaches of contract.
- A key breach of contract of course, relates to the denial of pay increases.
- Once again LEAF have clear documentary evidence of a policy of financial penalty against those who refused to sign over.
- We
have evidence that effectively amounts to an "incitement"
to breach of contracts. Affected
staff will also know that their careers have been blighted
as a result of sticking to their lawful right to remain
on Silver Book terms.
- This is another possible element within a claim that may be made at County Court. The limitation period for claims in the County Court is six years. Members should contact LEAF for advice on this claim.
- CLAIMS PROCESSING
During the summer, officers of LEAF have been investigating the means by which the many thousands of potential claims that may arise from the Havering case could be properly handled. To that end, the General Secretary of LEAF met with senior executives of a major public company, with claims processing facilities.
- Claim details are currently being drawn up and the software implications analysed and prepared. The variants of potential claims are considerable. In the first raft of claims we are interested in the following categories of staff.
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If you or any of your colleagues fall into one or more of these categories we would like to hear from you.
To give you an insight into the nature of claims that could be made, just one of the Applicants in the Havering case has a claim for damages in excess of £10,000. Her claim results from increased child-care costs and cost of travel. We will also be looking at numbers of hours worked which have not been properly compensated and lost holiday entitlements over a five year period.
The potential claims do not however stop there.
TRIBUNAL HEARS WITNESS EVIDENCE OF
NEW CONTRACT ABUSES
The Tribunal heard from six witnesses, five of whom were from LEAF 's side. In addition to three of the applicants, all serving lecturers, witness evidence came from David Evans, LEAF's General Secretary who is a Silver Book lecturer on 1993 salary rates, and the former Chair of the NATFHE branch.
He confirmed that the college, like hundreds of others, had steadfastly refused to come to a negotiated agreement on conditions of service.
The five LEAF witnesses conducted themselves with the professionalism we have come to expect from FE lecturers. For five days they were cross-examined by counsel for the AOC. LEAF's General Secretary was cross-examined for two days.
On the sixth day the sole witness from the other side, the retiring principal of Havering College, was cross-examined by counsel for LEAF.
A fuller account of the proceedings can be accessed at our website.
It makes gripping reading.
SAUCE FOR THE GOOSE?
Early in the proceedings, Melanie Tether, counsel for the employers, suggested that should LEAF succeed in its claim that the variations of lecturers contracts were unlawful, and therefore void, the AOC would counter-claim for the value of any pay increases or other benefits that were given to those on the new contracts.
She commented that "what is sauce for the goose is sauce for the gander".
We had, of course, been expecting such an argument. However it was quickly pointed out by the Chair of the Tribunal, that the colleges had received the benefit of the extra labour that had been brought about by the imposition of the new contracts, and that any such claims by the AOC would inevitably fail as a result.
The Chairman's comments had roughly the same effect as if he had dropped a brick on her foot.
Counsel for the AOC, did not press the point any further.
LEAF however, will press for compensation for the disadvantages suffered by staff as a result of the increased workloads.
WHAT DID WE ARGUE AT THE TRIBUNAL?
....That the contracts introduced following incorporation were causally linked to the transfer itself and therefore unlawful according to EU law on transfers of undertakings.
....That the protection of the Acquired Rights Directive applied to our applicants and that this protection had been circumvented.
....That no 'bone fide' pay review of 'Silver Book' staff has taken place since 1993, since a genuine pay review would inevitably have resulted in a pay increase. This action amounts to a policy of economic duress designed to achieve a transfer to all staff to new inferior contracts.
....That incorrect and misleading information accompanied the 'offer' to existing staff to transfer to non-negotiated contracts.
....That a return to the 'status quo ante' is the correct way to redress the situation (i.e. to a binding national collective agreement), which LEAF will negotiate on behalf of lecturers.
WHERE DO WE GO FROM HERE?
Such is the importance of this case, that the Chair of the Tribunal has earmarked a further three days in the Autumn for legal argument and deliberation by the Tribunal.
We are confident that our view will prevail when the decision is published early next year.
As we have explained above, we have already made significant gains, and we intend to move in the future to a stronger position. Undoing six years of injustice takes time, but remember that LEAF have been on the case for five years already.
It is likely that a second raft of claims will follow, involving the bulk of lecturers whose terms and conditions were worsened after incorporation. This claim would involve many hundreds of millions of pounds.
We will supply members with details at the appropriate time.
LETTER TO THE AOC
We mentioned at the beginning of this newsletter that an important concession had been made on the first day of the hearing, that further education colleges could now be construed as "emanations of the State".
The implications of this concession are enormous.
We wrote to the AOC directly after the Tribunal to put them on notice that we would be shortly seeking lecturer's entitlements in law under the Working Time Directive.
The Directive took automatic effect [for employees of emanations of the State] on the 23rd November 1996. We had written to the AOC on more than one occasion in late 1996 early 1997, to say that we considered colleges to be emanations of the State and demanding our rights to paid holidays under the Directive.
The AOC denied that colleges were emanations of the State or that the Directive had direct effect.
We will now be looking at three years arrears of holiday entitlement.
ACTIONS SPEAK LOUDER THAN WORDS
The 'recognised' unions, NATFHE and the ATL, have recently joined with the AOC in a 'working party' (their favourite activity), to petition the government for more money for lecturer's pay.
This is the same AOC, by the way, which has been following a policy of impoverishing lecturers since incorporation.
LEAF has not been invited to sip coffee with these worthies (we would have politely declined any invitation at this time anyway!). Instead we have been taking practical action to improve your situation.
You can be proud of LEAF's efforts for the profession, all achieved on very modest resources.
WHAT SHOULD YOU DO NOW?
If you have not yet done so, you should join LEAF now.
Full details are at our web site....and you can download a membership form. If you are a member, tell your colleagues about LEAF, and get a group together to form a LEAF branch.
Whatever anyone else tells you, LEAF is a highly effective and positive force for lecturer's interests. We do not, after four years of existence, have to prove our long-term commitment to lecturers professional interests. That fact is self-evident from our record over the years.
With your support we will once again make further education teaching a profession that all good teachers want to be a part of.
For six years, since incorporation, the employers, encouraged by the last government, have been able to impose whatever changes they wished to your terms and conditions with impunity.
This dominance was brought to an end at 10.00am on 26th July 1999, when LEAF's team marched into the Tribunal room and took up the cudgels on behalf of our profession.
We have caught up with the AOC and in due course we will overwhelm them.
We want you to play a part in this process.
LEAF IS WINNING.
LET'S MAKE SURE WE FINISH THE JOB
© LEAF 1999