First Hearing     DAYS 2-3

RALTON and OTHERS v. HAVERING COLLEGE   The second (resumed) part of the hearing took place between Monday 13th and Wednesday 15th of December 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 2230 hrs. on Monday 13 December 1999   EXCELLENT START FOR LEAF ON THE FIRST DAY OF THE RESUMED HEARING   On the first day of the resumed hearing of the legal arguments in Ralton & Others v. Havering College, LEAF's Q.C. presented a range of cases brought under European law relevant to the scope and effect of the Acquired Rights Directive, and its bearing upon LEAF's case.   In their skeleton argument, counsel for the Association of Colleges, referring to the fact that some of the Applicants had been employed on fixed-term contracts which simply expired, suggested that the College was in a position to renew those contracts on "different terms" in just the same way as the LEA could have renewed the contracts on "different terms".   It was quickly drawn to the attention of the Chair of Tribunal by counsel acting for LEAF, that this was not in fact the position. Eleanor Sharpston Q.C. said that, the Silver Book collective agreement had transferred with the staff by virtue of the Acquired Rights Directive at the time of the transfer of colleges from LEA control. Since the Silver Book agreement had never been terminated or replaced by the LEA or the College, both transferor and transferee were bound by its terms. Consequently, neither "transferor" [the LEA] nor the "transferee" [the College] could have lawfully offered new and worse terms to our Applicants.   The Tribunal Chairman noted this fundamental point. Following this line of reasoning, it logically follows that even those staff who were employed after the transfer in April 1993, and therefore not having the protection of the Directive, would nevertheless have a right to be employed on the terms of the Silver Book agreement.   While the matter of staff appointed after the transfer is not within the remit of the present tribunal case, the matter could justifiably be the subject of separate High Court proceedings. LEAF is in the process of consulting with its legal team, with regard to the prospect of bringing High Court proceedings in relation to the contracts of staff appointed after the transfer.   Make no mistake about it, LEAF has employed the very best counsel to argue its case. Our avowed aim is to dramatically improve the pay, conditions and prospects of all Lecturers in Further Education. And this is the important point; only LEAF has any realistic prospect of achieving this aim.   Isn't it time that YOU became a member of LEAF?   Why not download your membership application form from the web-site while you are online? You can now see that it is making more and more sense to add your support to the winning side as this case develops and unfolds.       Return to top of Page     DAYS 2-3: PRESS RELEASE at 0100 hrs. on Friday 17 December 1999   THE LEGAL ARGUMENTS SURROUNDING THE CASE CONTINUE   Numerous European Court of Justice cases were cited, including those cases brought by the European Commission against Member States.   Counsel for the Association of Colleges was clearly making strenuous efforts to try to convince the Chairman that the matter should be dealt with under English law and raised arguments concerning matters of "subsidiarity". Three days of legal argument is of course more likely to be experienced in the Court of Appeal than in a tribunal. This is an indication of the gravity of LEAF's case.   However, none of the case law cited by counsel for the AOC was directly in point. Although mainly concerned with "transfers of employer" all involved dismissals of staff. Our case involves "variations" to the contract. At the end of the employer's citations and arguments, their counsel threw in the Chippenham College case. The Chairman immediately commented that the case, which NATFHE had lost in 1995, was not brought under European law. He said the case was therefore irrelevant to the arguments in the proceedings before this tribunal.   The employers had no grounds to argue that there were any economic, technical or organisational reasons to vary the contracts. This meant that their counsel was left with suggesting that the Government had determined that there must be a "change in the culture" of FE colleges, which principally involved getting more work from existing staff in order that the target of a 25% increase in student numbers could be achieved. Counsel for LEAF made it very clear that, Community law in the same way binds governments, as it would anyone else. A government was not above European law.   In essence, our counsel's submission to the Tribunal was that:-   Where the transfer itself is the grounds for the termination of the particular employment relationship, the very fact that the transfer caused the change in employment conditions, puts the employer in breach of the Acquired Rights Directive and renders the new contract unlawful.   She said that, "This is particularly so in the present case, which must be considered an extreme example of the genre, where the entire transfer [N.B. by Statute] was designed to effect a negative change in employment conditions of the employees of Further Education establishments. This was thus a deliberate attempt to avoid the mandatory rule of the ARD in direct contravention of Community law duties.   Further, she said that it is clear from the evidence that the termination of the Silver Book employment relationship, because of the transfer, involved a substantial change in working conditions to the detriment of the employee. Therefore, the College could not escape its automatic responsibility under Article 4(2) of the Directive.   Eleanor Sharpston Q.C. then invited the Tribunal to find that:   [1] the Applicant's pre-transfer employment terms and conditions [the Silver Book terms] have continued and will continue to apply to their employment at the College.   [2] where the apparent terms and conditions of the Applicant's contested contracts are less advantageous to the Applicants than the Silver Book terms, these will be overridden by the Silver Book terms.   Our counsel submitted that, "it must follow that the clauses governing contractual pay [which it was open to the College to increase along established pay review lines] must be preserved in order to give the Applicants an effective remedy. To that end she submitted that the Applicants are also entitled to the annual pay which they be receiving, given the annual pay review carried out pre-transfer, which terms of contractual pay may not result in an effective freezing of the Applicants pay at pre-transfer levels [which would not truly reflect the pre-transfer situation] but must take into account the notional raises in the intervening years; such pay reviews to continue in future years.   The Chair of the Tribunal said that the decision, which will no doubt be of considerable length given the number of authorities cited, is likely to be given in February 2000.       THE LEADERS OF LEAF REMAIN VERY CONFIDENT THAT WE WILL PREVAIL IN THIS DAVID AND GOLIATH CONTEST. THE "SLING" IS A VERY EFFECTIVE WEAPON IN SKILLED HANDS AND WE COULD NOT HAVE ASKED FOR ANY MORE FROM OUR COUNSEL AND SOLICITORS WHO HAVE BEEN MAGNIFICENT.   OUR THANKS GO TO:   TONY HOWS AND CHRISTINE BAILEY OF A.J. HOWS & ASSOCIATES [SOLICITORS]   ELEANOR SHARPSTON Q.C. PHILIP MOSER [COUNSEL]       JOIN LEAF TODAY BY DOWNLOADING AN APPLICATION FORM FROM OUR WEB-SITE WHILE YOU ARE ON-LINE. YOU KNOW IT MAKES SENSE!   Return to top of Page