Stephen Pimenoff looks at a teacher forced to retire at 60 because the DFE regards him as a civil servant.
A long-running dispute over the retirement age of teachers in European Schools advanced another step last month with an industrial tribunal ruling that a teacher at the European School, Culham, Oxford, had not been unfairly dismissed.
Roger Birchall, a geography teacher who spent the past 10 years of his 38-year teaching career in European Schools in Belgium and Britain, was obliged to retire in 1991, aged 60. That is the normal retiring age of civil servants, so the controversy really hinged on the status of ES teachers, and indeed who their employer is - the national government, the European Union or the school itself. There are 194 British teachers in the nine European Schools - three in Belgium, two in Germany, and one in each of Luxembourg, Italy, The Netherlands and Britain.
Mr Birchall's tribunal ruled that the Department for Education and the board of governors of the European Schools were joint employers, who had the right to set a retirement age of 60.
More than four years of legal wrangling had failed to settle these points. Repeated industrial tribunal hearings resulted in adjournments and postponements on procedure and points of law. Roger Birchall says: "Somebody seemed very determined to delay my case, perhaps hoping I would die first, or run out of funds?" The case may now go to an employment appeals tribunal and ultimately the European Court.
In addition to claiming unfair dismissal, he also claims under the Race Relations Act (race being defined, among other criteria, by nationality) that the Government has discriminated against him "in the way that it settled terms of secondment so that other nationalities have rights preserved which the British do not". This in turn raises the matter of his rights under Article 48 of the Treaty of Rome (concerning freedom of movement within the Union), invoked because he has worked in more than one country.
Mr Birchall, who now lives in Oxford, feels particularly strongly on the discrimination issue: "French and German teachers get extra seniority for service in European Schools. Italians get enhanced pension rights. No other national contingent, as far as I can ascertain, gets reduced pension rights by being forced to retire earlier than they would in their national or local government employ."
In a 1987 policy letter the DFE said that by retiring teachers at 60 it hoped to eliminate "staleness and ossification" in the classroom. But Roger Birchall, who still works part-time at the European School in Culham rejects this argument: "If there is this problem it is clearly a management duty to do something about it.
"They have the power to organise counselling, re-training and ultimately to dismiss teachers who are 'ossified and stale'. I asked to be informed if ever it was thought I came into this category."
After a probationary year, European School teachers are offered four-year renewable contracts, up to a maximum of three. The usual length of service is nine years.
Strictly, they are employed by the DFE and seconded to the ES. Their status is anomalous in that they are deemed to have "civil service status" without being civil servants. They continue to have their salary paid by the DFE. But this is topped up by a "European supplement", paid by the school, re-inforcing the case that the DFE and the ES are joint employers. Teachers remain members of their superannuation scheme, though contributions are calculated only on their basic, not their enhanced salary.
Before he retired, Mr Birchall was told he could appeal to the Civil Service Appeal Board, but the board refused to hear the appeal, claiming it had been filed on "outdated regulations" - which had been supplied by the DFE.
He appealed to the Reading industrial tribunal, which in 1993 found in his favour, but only on the question of retirement age (the Government had applied to have that issue dealt with separately, as a preliminary point, because the industrial tribunal has no jurisdiction to hear cases where dismissal takes place through normal retirement).
This judgment was reversed on appeal by the Government, Mr Justice Mummery ruling that, because the various claims could not be separated, the case should be referred back to the industrial tribunal. At the end of November last year it was heard again in Reading. It is that judgment which has just been delivered.
Mr Birchall has received financial support from teachers across Europe, who see the matter as a test case. But his union, the National Association of Schoolmasters Union of Women Teachers, was unwilling to get involved. It believed there were no grounds for legal action, and warned him that the outcome was unlikely to be in his favour. He says: "I think they felt that if they lost, it might open the doors to thousands of members being retired at 60, without compensation, by UK schools anxious to save money by getting rid of senior staff.
"The generally much higher pay and benefits enjoyed by ES teachers doesn't encourage officials in national unions in Britain to take as seriously complaints from their ES members as they might those from teachers in their own national schools. There is an understandable tendency for national unions to conserve their funds for fighting those cases which will bring the greatest benefit to the largest number of their members."
Many ES teachers join the Union Syndicale, the Belgian organisation with Union-wide membership, precisely because they expect little support from national unions.
It may still be some time before the issue is finally resolved. But Roger Birchall is determined to fight on, convinced of the justice of his cause and baffled by official obduracy.
He says that at the heart of the dispute lies the question: "Why does the Government insist on a Civil Service retirement age for teachers who have remained in the Teachers' Superannuation Scheme and are not civil servants?" It is a good question, and one that deserves an answer.
The fund to help Roger Birchall with his legal expenses is managed by Cole Cole, Buxton Court, 3 West Way, Oxford OX2 OSZ.