Lecturers test legality of contracts
If the college loses, the case will go to the Employment Appeals Tribunal. If the staff lose, they also hope to appeal to EAT. But whereas the college has the resources of the Colleges Employers' Forum behind it, the staff rely on a voluntary fund, the Colleges Legal Fund, founded in May last year and run more or less single-handedly by David Evans, a forceful and determined 51-year-old business studies lecturer at Havering College of Further and Higher Education. He may not be able to raise the money to go to the EAT.
He will certainly be struggling if the case goes further than that - his target is Pounds 20,000 and he is probably not quite half way there. It could theoretically go all the way to the House of Lords and then to the European Court of Justice. In reality, both sides are likely to abandon it before reaching that stage. Mr Evans is unlikely to be able to fund the case that far. The CEF, if it loses at the EAT, will probably cut its losses and seek other ways to impose its new contracts.
The CEF claims that after incorporation, lecturers were no longer legally employed by the same body - they were employed by the new corporation, instead of the local authority. The new employer therefore has the right to tear up existing contracts and write new ones which include longer working hours. The lecturers' case rests on a European Commission directive, the Acquired Rights Directive, which the British government, reluctantly and under pressure from the European Commission, incorporated into English law as the Transfer of Undertakings Protection of Employment legislation (TUPE). TUPE has already been successfully used by public sector trade unions to protect the wages and conditions of local authority staff whose work was hived off to the private sector.
In 1992 the lecturers' union NATFHE won a judicial review which establishes that lecturers' conditions went with them. Staff moved to the new corporations with their conditions intact and the Government could no longer argue that TUPE did not apply to non-commercial ventures like education - a key victory, says NATFHE solicitor Michael Scott. "The implication is that where a collective agreement is in force, it stays in force after the transfer, and the new employer must seek to re-negotiate the agreement with the union." NATFHE has not been able to reach an agreement on new contracts with the CEF, and is encouraging branches to seek local agreements.
Now Mr Evans wants the courts to go further and say that lecturers cannot have their conditions changed without a new agreement. He wants to stop new lecturers, and those who are promoted, from going on to the new contracts and is pushing for a declaration that, if one purpose of creating the new corporations was to change the contracts, then that is not lawful. Therefore, lecturers' signatures on the new contracts are invalid, because they cannot lawfully agree to an unlawful contract.
He believes that he can use the wording of the EC directive itself, not the rather watered-down version in TUPE, because FE corporations will be considered to be "emanations of the state". This will enable his lawyers to argue that the Silver Book - the traditional agreement - stays in force until it is terminated by agreement. "The basis of any negotiations must be our existing terms and conditions, and this is an implied term of our contracts."
He has hired top employment lawyers and wants "to build a strong and reliable organisation, one that can equal the CEF in its financial resources and is able to access and use the best legal advice and representation".
NATFHE is having nothing to do with the case. Michael Scott thinks the claim is unlikely to succeed, and that it is "a legal argument which will not solve an industrial relations dispute".
Mr Evans has lost patience with the union. "The contracts increase the workload of academic staff by 40 per cent through the addition of seven hours a week and extending the college year by removing holiday entitlements," he says.
"There is a great deal of anger over them, but increasingly that anger is being directed at NATFHE." He is furious that the union has agreed to conciliation at the Arbitration and Conciliation Advisory Service.
"During the past two years NATFHE's leaders have made concession after concession to the CEF, in the vain hope of reaching an agreement they could sell to their membershipIit is time for people to consider whether or not their best interests are served by continuing to offer financial and political support for them".
NATFHE has condemned the agreement the CEF reached with the minority union in further education, the Association of Teachers and Lecturers. "It is very dangerous," says union spokeswoman Paula Lanning. "It is not contractual. We want contractual safeguards for lecturers. We are telling our branches to reach agreements locally."
But she says many new lecturers or those who are promoted may have little option. Colleges will still be able to impose their new contracts by a process of attrition; as new lecturers are appointed and existing ones are promoted, their contracts will come up for grabs. The CEF agrees. Its industrial relations director Marcia Roberts says: "Fewer and fewer people will be on the Silver Book anyway." But Mr Evans says it will be difficult for any college to operate on a two-tier basis. He urges lecturers not to agree to new contracts. "The employers need you to sign a new agreement much more than you need the pittance they are offering for the sale of your rights."
Edited by Ian Nash