Day 1 Monday   Day 2 Tuesday   Day 3 Wednesday   Day 4 Thursday   Day 5 Friday   Day 6 Monday   LEAF Summary   Letter to AoC       Second Hearing       SEPTEMBER 1999 Newsletter

CROFTS and OTHERS v. HAVERING COLLEGE (subsequently referred to as RALTON and OTHERS v. HAVERING COLLEGE)   The first part of the case took place at 10am on Monday the 26th of July 1999 at the Employment Tribunal, Woburn Place, London.   Counsel for LEAF: Dr.Eleanor Sharpston QC, Mr.Philip Moser   Instructing Solicitors: Mr.A.J.Hows, Lawford and Company     Following text on this page is freely released for publication and distribution.......please copy.     DAY 1: PRESS RELEASE at 2000 hrs. on Monday 26 July 1999   From the commencement of these proceedings in 1994, the lawyers acting for the employers had consistently denied that the transfer of colleges from Local Education Authorities to Further Education Corporations was a relevant transfer for the purposes of the Acquired Rights Directive, or that colleges in terms of European law, were emanations of the State.   On the first day of the proceedings in Ralton v Havering College of F&HE at the Employment Tribunal in Woburn Place, London, counsel for the employers side conceded that;   1] The transfer was a relevant transfer for the purposes of the ARD.   2] Colleges were emanations of the State.   The implications of these concessions are very important to those who work in the Further Education sector.   In particular, the second key point of law clears the way for all staff employed in colleges of FE to be able to rely on European Directives directly and not have to wait until a directive is transposed into UK law before it has legal force.   In terms of ramifications, those staff who were employed on term-time only contracts and who did not receive any entitlement to paid holidays, will be in a position to ask their employers to pay them arrears of lost holiday entitlement dating back to when the Working Time Directive came into force on 23rd November 1996.     Return to top of Page     DAY 2: PRESS RELEASE at 2100 hrs. on Tuesday 27 July 1999   On the second day of the Employment Tribunal, LEAF General Secretary, David Evans, was cross-examined by counsel for the employers.   The main thrust of her questioning was aimed at demonstrating a link between efficiency savings and the introduction of the new and worse contracts.   This line of questioning was contrary in many respects to the employer's key defence that the threat of "holdback" of funds to the College was the reason.   Their counsel's objective was to add to that defence by the introduction of other factors bearing on the decision to worsen terms and conditions of the Applicant's.   Counsel acting for LEAF, Dr Eleanor Sharpston Q.C. advised the Tribunal that she may be seeking a direct reference to the European Court of Justice.   Melanie Tether, counsel for the employers indicated she would seek to oppose such a move.   Tomorrow, the Applicants in the case will be asked to present their Witness Statements and undergo cross-examination.     Return to top of Page     DAY 3: PRESS RELEASE at 2200 hrs. on Wednesday 28 July 1999   On the third day of the Tribunal hearing at Woburn Place, London, Mrs.Marion Humphreys, one of the Applicants in the case, gave her evidence.   Counsel for the employers, Melanie Tether, tried desperately to diminish the significance of Mrs Humphrey's evidence, but to no avail.   Mrs Humphreys, a lecturer in the Department of Business Education at Havering College, contrasted the benefits of the Silver Book contract over the new contract in a competent and clearly expressed style.   At one stage in the proceedings, counsel for the employers attempted to show that the "holiday arrangements" under the new contract were more flexible for the employee - who could now take their holiday at any time of the year.   This suggestion resulted in raucous laughter from those who were observing the case.   When the laughter died away, Mrs Humphreys told the Tribunal that counsel's suggestion was incorrect, and that it was impossible for her to take any holiday entitlement during term-time, because she was expected to teach.   The amusement was not lost on the Tribunal Chairman and panel, who readily saw Mrs Humphrey's point.   Tomorrow, other Applicants in the case will give witness to their experience of being forced onto a new and worse contract.   The employers will not be looking forward to further revelations about their behaviour toward lecturing staff in the long running dispute over the imposition of new contracts. Nor, we suspect, will the Principal, Ken Clarke, be looking forward to a day or two of careful cross-examination by Dr. Sharpston QC.   He has looked far from being a happy bunny from the beginning.   Yesterday, we told you that our counsel had laid down a marker for a direct reference to the European Court of Justice, if that proved necessary.   That is still the situation and the Chair of the Tribunal has in essence agreed with our QC's suggestion.   He clearly recognises that this is a major case and has said so.   The officers of LEAF have struggled for many years to get this important case heard. The employers had hoped we would simply evaporate before the matter came to court.   Lecturers have taken enough punishment from their employers over the past six years and the employers seem to have enjoyed showing the "whip" to what they considered was a beaten "dog".   That must never be allowed to happen again!   This case simply marks the start of the dog's recovery!     Return to top of Page     DAY 4: PRESS RELEASE at 2300 hrs. on Thursday 29 July 1999   On the fourth day of the hearing, the final witnesses for LEAF's case were heard.   You are reminded that this case involves those who were on fixed-term contracts [Silver Book terms] and one Applicant, Mrs.Christine George, who was a member of the permanent staff of the College [Silver Book].   In the latter instance, Mrs.George applied for a temporary [one year] post as a Senior Lecturer in 1993. She was successful in her application and carried out her duties as a Senior Lecturer for that period.   When she reapplied for the job she had been doing after the one-year contract expired, she was again successful. She later learned this would be on a new and worse contract, i.e. after she had accepted the post.   The witnesses on our side performed extremely well and we are of the view that the Tribunal is developing a clear picture of events in Further Education since 1993.   Tomorrow the Principal of Havering College, Ken Clarke will be called.   We believe he is the only witness on the employers side.   We are looking forward to hear his evidence.     Return to top of Page     DAY 5: PRESS RELEASE at 2300 hrs. on Friday 30 July 1999   On the fifth day of the tribunal hearing, the Principal of Havering College, Ken Clarke, gave his evidence.   This largely consisted of references to the need for the College to have staff on new contracts of employment, because of the College's need to provide a customer friendly service and meet the demand for increasing student numbers.   The Principal referred to the fact that he needed staff to all be on the same contract.   The Chairman of the Tribunal made the passing comment that he had a common contract, under the Silver Book.   The Principal's response was that the Silver Book was not flexible enough, in particular in relation to commercial short courses and other employer/college type programmes.   The Principal did however acknowledge that some years ago, the Silver Book agreement had been varied locally to meet the needs of an engineering course requiring a forty-eight week year. However, he pointed out that it was simply unworkable because the Silver Book staff "actually wanted to be paid for the extra weeks they would be required to work". This he said, made it economically unviable.   The Principal produced some figures for summer enrolments but when asked if he could produce the actual statistical record from which he had drawn this summary data, he said he couldn't because it was to difficult to do so and would involve a vast amount of time.   The Chairman thought the data really didn't take the Tribunal any further and suggested the matter be dropped.   Mr.Clarke, the Principal of Havering College, will be cross-examined by Eleanor Sharpston QC on Monday the 2nd of August.   It should be a very interesting day and those lecturers who have a little time on their hands really should attend the finale of this very important case.   It is interesting to note that not a single observer from NATFHE has been seen, or from any other teacher union for that matter. Neither have the press attended on any day of the five days so far.   WATCH THIS SPACE!!!!!!!     Return to top of Page     DAY 6: PRESS RELEASE for Monday 2 August 1999   COUNSEL FOR LEAF CROSS-EXAMINES HAVERING COLLEGE CHIEF EXECUTIVE!   On Monday 2nd August, after five days during which Melanie Tether for the AoC and Havering College had cross-examined five LEAF witnesses, it was finally our turn.   Almost immediately, there was a dramatic shift of emphasis.   Ken Clarke, the retiring Havering Principal, and the only witness called by them, was asked by Eleanor Sharpston QC, for the applicants, about his reference to the "restrictive practices of the Silver Book".   Lecturers reading this report will recall that this assertion was a Roger Ward mantra for five years.   Continuing, it was asked if he would accept that from a different perspective, the Silver Book Contract, with limitations on the right of employers to exploit professional staff, could be described as "staff friendly".   Clarke looked confused. He asked for the question to be put again. He averred not to understand.   "Looking through a telescope from the other end", volunteered Dr. Sharpston.   "Yes", agreed Mr. Clarke, "It was possible to place a different interpretation on the Silver Book".   It all depends on your vantage point of course. One of LEAF's major points over the years has been that the constant repetition of the fiction of Silver Book "inflexibility" has led to many simply accepting it as a fact.   Even NATFHE, the original signatory, has walked away from a contract which obviously protected its members interests. But NATFHE is, of course, a seriously compromised organisation which is now incapable of furthering the interests of the lecturing profession.   What followed next was a withering and merciless exposure of the hollowness of the employers assertions about the "inflexibility" of the Silver Book. Even in the terms in which it was operating in 1993, it was demonstrated that the flexibility of the old arrangement was not in doubt.   The 'new' contract, by comparison, was absolutely rigid in its application and actually inhibited genuine teaching flexibility. The consequence of the unlawful introduction of CEF contracts has been a destruction of staff morale and therefore the quality of the service.   The AoC, the College Employers, and the Government, must bear the full responsibility for this calamitous situation.   The hapless Ken Clarke was left to repeat the old chestnut, that Silver Book Staff frequently worked strictly to the term of their contract, thus frustrating college managers attempts to bring about change. The problem (for him!) was, virtually no evidence was brought forward to prove this assertion.   Turning to the question of college funding and "holdback" after incorporation, in the context of 'new' contracts, the Principal was asked to explain how holdback had worked.   He was then asked why he had written to Silver Book staff offering a new contract, explaining that "holdback" would be applied if they did not sign, thus threatening the college (...and their jobs). This, of course, was factually inaccurate and potentially misleading.   It was never corrected, and may have led to some staff signing over to the new contract who would otherwise not have done so. Clarke remained silent.   In the second session of the day, the fact of the variation by the College of our applicants' contracts was questioned. Again and again, Dr. Sharpston pointed out that, the applicants had asked to keep their transferred terms.   When the question of the pay freeze against Silver Book staff was raised, Dr. Sharpston asked when the 'pay reviews' had taken place which had resulted in pay settlement for Silver Book staff of 0% in 1994, 0% in 1995 , 0% in 1996 , 0% in 1997, 0% in 1998, and, 0% in 1999.   Clarke replied that the Corporation had reviewed the pay of staff.   We know (of course), that he and other principals were instead following CEF/AoC guidelines in enforcing a policy of financial penalties, designed to break the collective agreements.   A genuine 'bone fide' review would have inevitably resulted in pay rises for Silver Book staff since the purchasing power of money has declined since 1993. Yet we are asked to believe that several hundred 'independent' corporations arrived- 'independently' -at a different conclusion every year!   The Havering cases have now been heard.   LEAF has breached the carefully constructed defences of the CEF/AoC and the previous government.   In due course we will overwhelm the AoC and its policy of 'Wardism', and a settlement will be reached which is more 'staff friendly'.   This case will conclude with THREE further days of necessary legal argument on several points of law exposed by this case. This should take place in Autumn, followed by a decision early in the New Year.   Already LEAF is refocussing on other targets. If you are a lecturer reading this report you can be proud of LEAF's efforts on your behalf. LEAF was formed to challenge the right of the college employers to create a 'slaves charter'.   We are a powerful voice for the interests of the professional lecturer. Only LEAF has challenged the legality of the 'new' contracts in Further Education using European Law. Only LEAF represents exclusively the interests of lecturers, and only LEAF has won any major concessions from the employers since 1993.   From a standing start in 1995. LEAF has become the leading voice of professionals in the service.   You should join LEAF now, and add your support to a strategy which will transform your pay, condition and prospects in the years ahead.     Return to top of Page     PRESS RELEASE for Monday 9 August 1999   A SUMMARY OF THE KEY POINTS in Ralton and Others v. Havering College   Introduction   The above cases were submitted to Tribunal in September 1994. They were stayed pending a decision on points of law in other cases, identical to those points of law on which the Havering cases would turn.   The Havering cases were resurrected in 1998, following a decision of the House of Lords in [Wilson -v- St. Helen's Borough Council and Meade and Baxendale -v- British Fuels Ltd.].   The House of Lords upheld our initial interpretation of European Law concerning the unlawfulness of transfer-connected changes.   In a nutshell, it is unlawful to change the terms and conditions of employment of staff if the changes are causally linked to the transfer of an employer.   In the case of lecturers in Further Education, the transfer of employer took place on the 1st. of April 1993 when Colleges throughout England and Wales were removed from Local Authority control.   It was our contention that the "transfer" and the worsening of terms and conditions of Lecturers were "causally related".   Our case therefore argues that Lecturers' terms and conditions should not have been changed following the transfer of Colleges from Local Authority control to college governing bodies in 1993.     The Key Points of Law Submitted by LEAF:   1. That the transfer of colleges from Local Authority control constituted a relevant transfer for the purposes of the Acquired Rights Directive. [In the particulars supplied to the Tribunal the AoC had denied this point].   2. That the College and therefore all Further Education colleges are emanations of the State. [In the particulars supplied to the Tribunal the AoC had denied this point].   3. That the Applicants, who are Lecturers at Havering College, were unlawfully compelled to vary their terms and conditions after the College was incorporated, because the changes to their terms and conditions were causally related to the change of their employer, (i.e. LEA to FEC).   4. Our Applicants seek damages and a right to return to their former contract of employment which was governed by the Silver Book collective agreement.   The AOC's lawyers conceded points [1] and [2] on the first day of the Employment Tribunal.     The Hearing   The proceedings were allocated six days in the Employment Tribunal. A daily analysis is included in the Tribunal Update on our web-site. All six days were taken up with evidence and cross-examination.   As a consequence, the Chairman of the Tribunal allocated a further three days for legal argument on points [3] and [4]. The arguments on the application of fact and law on these points will commence on the 13th of December 1999----the earliest date at which all of those involved in the case could collectively agree to be free to be present.   We must of course await the decision of the Tribunal on its assessment of the facts of LEAF's case following the six day hearing. However, the fact that the Chairman of the Tribunal has ordered a further three days for legal argument on points [3] and [4] is we believe a helpful indication that there is some substance to the facts we presented.       Return to top of Page       LEAF 126 Saint Augustine's Avenue Thorpe Bay Essex SS1 3JF   The Chief Executive Association of Colleges 5th Floor Centre Point 103 New Oxford Street London WC1A 1DU     4th August 1999   Dear Sir,   Re: Employment Tribunal [Ralton & Others v. Havering College]   Counsel acting for the employers in the above proceedings conceded that the College is an "emanation of the State", which is contrary to advice you had previously given to your members. In this connection I draw your attention to the following sheaf of correspondence between LEAF and the AOC on this matter.   On the 2nd December 1996, I wrote to Principals of colleges to advise them that Directive [93/104/EC] automatically took effect on the 23rd November 1996 for employees of emanations of the State.   In my letter I draw attention to certain entitlements under the Directive that applied to Further Education lecturers, making clear our view that under European Law, colleges would be regarded as emanations of the State.   On the 3rd of January 1997 I received a letter from Marcia Roberts, together with an enclosure entitled - DRAFT LETTER TO UNIONS IN RELATION TO THE WORKING TIME DIRECTIVE AND SILVER BOOK STAFF.   By the 7th of January, I began receiving responses from Principals throughout the Further Education sector. All of the letters were verbatim accounts of Marcia Robert's enclosure to me. The first paragraph of the AOC's 'draft' to member colleges specifically denies colleges are emanations of the State. In light of the Judicial Review brought by NATFHE in October 1992, and the concessions made by the Secretary of State, the AOC's advice to its member colleges was, to say the least, surprising.   I wrote to the AOC on the 17th of February 1997, stating that it was the view of our solicitors that colleges incorporated under the provisions of the Further and Higher Education Act 1992 are emanations of the State. Further, I drew your attention to the then recent decision of the Court of Appeal, in the case of St. Mary's Church of England (Aided) Junior School & Others, [16th Dec. 1996].   I said in my letter, that we are aware that you have, in the past, adopted a contrary view but we do not know if you have reconsidered the matter since this judgement was handed down. No response was received from your organisation.   This letter puts you on notice that LEAF will be consulting with its legal team in regard of the concession made by your lawyers in tribunal last week, and in respect of the implications of that concession for lecturers' entitlements in law.   Yours faithfully,   David Evans [General Secretary]       Return to top of Page   BOOKMARK THIS PAGE for continuing NEWS UPDATES on this landmark case.