Part-timers' hopes pinned on test case

15th September 1995 at 01:00
Poised for appeal: the NUT's Graham Clayton anticipates "one of the most important legal decisions of the decade".

A woman teacher's unfair dismissal claim could trigger one of the most important English court rulings for at least a decade, the National Union of Teachers' senior solicitor, Graham Clayton, predicted this week.

Mary Biggs, a Somerset home tutor, is seeking compensation for being forced to quit her part-time secondary school post in 1976 because she would not work full time.

If she wins, thousands of other people who have lodged similar claims stand to receive millions of pounds in compensation. Up to 60,000 part-time employees, including several thousand teachers and lecturers, could also gain the right to compensation for being excluded from their occupational pension schemes.

But, perhaps more significantly, a union court victory will make it much easier for UK citizens to seek redress for their grievances under European, rather than British, law.

Mrs Biggs' unfair dismissal claim is one of many that were prompted by the House of Lords' ruling in March 1994 that British law had been out of step with European legislation by stipulating that employees who worked for under 16 hours a week were not entitled to the same rights as full-timers. That decision represented a triumph for the Equal Opportunities Commission which had argued that this law amounted to sexual discrimination as most part-timers are women.

The backdated superannuation claims stem from last September's European Court of Justice decision that all part-time workers should have equal access to pension schemes. Again, the court decided that to exclude part-timers from superannuation schemes would be tantamount to sexual discrimination.

Mrs Biggs' case has already been rejected by an industrial tribunal and an employment appeal tribunal, which confirmed that although part-time employees can pursue unfair dismissal and redundancy compensation cases under European law, such claims have to be brought within three months of losing their jobs.

The appeal tribunal said that Mrs Biggs, who had been working 14 hours a week at Whitstone School, Shepton Mallet, should therefore have lodged a claim in 1976.

At that time British law stated that only employees working at least 21 hours a week were entitled to seek compensation for unfair dismissal, but the appeal tribunal said that she could have challenged the law then rather than wait for last year's House of Lords' judgment.

The appeal tribunal also proposed that no more retrospective claims of this kind should be brought before tribunals until the matter has been considered by a higher court.

But the delay should be relatively brief as the Biggs case is due to go before the Court of Appeal in early November.

Graham Clayton said that the union was not disheartened by the tribunals' rulings because the appeal tribunal itself had anticipated that the final decision would have to be taken at a higher level. "I really do believe that this case could yet produce one of the most important legal decisions of the decade, if not longer than that. A victory for Mrs Biggs could benefit the thousands seeking compensation for lost pensions because the current three-month deadline on claims currently applies to them too - they are expected to lodge claims within three months of being denied a pension.

"It will also mean that a very large number of employees who are protected by European laws which the UK Government has been slow to implement will be able to achieve straightforward remedies. They will be able to go through an industrial tribunal, for example, rather than face the horrors of extended and intimidating court proceedings.

Individuals will, in effect, acquire the rights that the Government is seeking to deny them by opting out of aspects of the Maastricht agreement."

Nevertheless, the appeal tribunal's July ruling appears to be at least a temporary setback for not only the NUT but the other teacher unions, which are all handling retrospective claims over redundancy, pension entitlement and unfair dismissal.

The vast majority have been lodged by women, some of whom lost their jobs when they became pregnant or were never re-employed after their maternity leave. Many of the claims go back nearly 20 years as European law permits backdating to 1976.

As Jerry Bartlett, legal officer for the National Association of Schoolmasters Union of Women Teachers, has pointed out, the appeal tribunal decision prevents the unions from capitalising fully on another recent ruling by the Court of Appeal which has improved employees' rights. The court decided on July 31 that two women part-timers could not only lodge unfair dismissal claims irrespective of the numbers of hours they worked each week but also irrespective of their length of service.

Previously, it was only possible to pursue such a case after two years' service.

But the court decided that was incompatible with the principle of equal treatment under European law.

That case is, however, also hedged around with legal technicalities and is being referred upwards to the House of Lords at the request of the Employment Secretary.

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