Unions see the prospect of a High Court case over early retirement as positive, but sceptics believe otherwise, reports Biddy Passmore. Has the Education and Employment Secretary climbed down over early retirement for teachers?
The Association of Teachers and Lecturers thinks so. The 160,000-strong union, represented by Cherie Booth QC, won permission in the High Court last week for an urgent hearing of its case that Gillian Shephard had overstepped the mark in trying to slow down the teachers' stampede to retire before April.
But Mrs Shephard's lawyer denied in court that the minister had "changed the rules". The union had simply misunderstood a departmental letter. There was no need for a court case.
Peter Smith, ATL general secretary, thought that was "a major retreat" and "a major victory". There are strong signs, meanwhile, that the Government is about to climb down over the timing of the changes that are causing the stampede: the proposed shift in the extra cost of early retirement from central government to local authorities, colleges and schools. Local authority employers emerged from a meeting with schools minister Cheryl Gillan last week hopeful that they can get the change deferred from April to September.
And leaders of the National Association of Headteachers said they were optimistic of reaching a satisfactory deal with ministers following a meeting with Mrs Shephard on Tuesday. The union's national executive is meeting this weekend to work on compromise proposals to put to the Government.
The employers are also seeking permission to introduce two further changes to early retirement arrangements that already apply in the health service and the civil service (and to MPs too, although they do not seem to use them): freedom to offer a reduced pension to teachers over 50 and a full pension to teachers from their mid-50s. And they want to let headteachers and senior staff suffering from stress step down to do classroom teaching without jeopardising their pensions.
If teachers knew they would still be able to retire early after September, even if on less generous terms than hitherto, the current rush would slow down, the employers reason. And those teachers who did still want to go this year would be able to wait until August, rather than retiring at Easter and leaving schools understaffed for the summer term.
The current confusion stems from plans published by the Government last October. Prompted by fears of a teacher shortage and the spiralling cost to central government of the current early retirement arrangements, ministers decided to stem the flood of teachers retiring before 60. (13,000 teachers retired early last year and only one in five now works to retirement age. ) Parliament's financial watchdog, the controller and auditor general, had expressed concern at the strain being placed on the superannuation scheme by premature retirements, which cost Pounds 480m last year.
At present, the employers - LEAs and grant-maintained schools - only have to pay for enhancing the pension of a teacher who retires early; the lump sum and basic pension are paid in full out of the Teachers' Superannuation Scheme.
Under the proposed changes, employers will have to pay part of both lump sum and basic pension so they will no longer be able to offer enhancement (although the Funding Agency for Schools has told the 11,500 GM schools that it will pay in full for the early retirement of teachers of 53 and over, prompting cries of "unfair").
Ministers expected these changes would lead to a dramatic fall in the numbers taking early retirement and hoped the total would halve by the year 2000.
But the prospect of a sudden end to the early retirement teachers had come to expect as their right caused a sudden rush for the exit. Anywhere between 11,250 schoolteachers (the National Association of Schoolmasters Union of Women Teachers' estimate) and 17,500 (the NAHT figure) are estimated to be trying to get out by March 31.
The Department for Education and Employment, realising the proposals were having the opposite effect of that intended, decided to apply the brakes. A letter sent to employers in mid-December by Andrew Wye in the department contained some rather explicit advice.
Premature retirements, it said, could only be granted on grounds of redundancy or "in the interests of the efficient discharge of the employer's functions". And the department would not consider the retirement fell into the second category if the employer intended to re-employ the teacher, either full- or part-time, immediately or shortly after the teacher had retired. Nor would the early retirement be justified if the class was left untaught during the next term or had to be taught by a supply teacher or by amalgamation with another class.
The department's letter also said the Government would be monitoring the pattern of early retirements carefully over the next few months and might raise the employer's contribution if too many were granted. A certification form was attached to be filled in by employers for all early retirements granted after October 22.
That was the letter that alarmed the LEAs. These requirements had never been spelt out before. Indeed, the department had tacitly approved many thousands of premature retirements that might not strictly conform with them. Did the common practice of allowing tired (and expensive) older teachers to retire early and make way for fresh (and cheap) younger ones constitute an "efficient discharge of the employer's functions"? And what about all those teachers taking early retirement and then coming back on part-time contracts?
Some LEAs decided not to take any risks. In Manchester, for instance, the authority withdrew the offer of early retirement to teachers at Wright Robinson High School (although these were reinstated this week). Nationwide, many more offers have been put on hold.
So did the department's December letter constitute an attempt to impose blanket new restrictions on early retirement, as the ATL claims? Or was it, as Mrs Shephard says, just an attempt to clarify the Government's position? The matter may yet be decided in the High Court.
As Graham Lane, leader of the metropolitan LEAs and the employers' side, points out, the letter will have achieved the Government's desired effect whatever the High Court ruling.
Mr Lane accepts that ministers spending public money have the right to monitor how it is spent, and he accepts the switch in funding from government to employers. He just wants a little flexibility on timing and new early retirement arrangements to stop the panic.
"At the moment, LEAs are trying to get the position stabilised because we don't want children on the streets in the summer term," he says.