I was astonished to read his claim that "since 1988 the NASUWT has not contributed one significant or innovative legal case to employment law". I can only ask Les where he was in 1993 when NASUWT overcame the Government-inspired Wandsworth court challenge to the boycott thereby gaining one of the most spectacular union legal victories this century.
Furthermore, the Wandsworth case established against most expectations that classroom teachers did not carry statutory duties. It also established the right of unions to engage in disputes and pursue industrial action against the Government under Sections 219 and 244 of the Trade Union and Labour Relations (Consolidation) Act 1992.
I was astonished to see Les abandoning the long-established NASUWT philosophy that trade union action is much to be preferred over recourse to the courts. Sometimes action in the courts is unavoidable. Most of the time direct representation backed up by action where possible and appropriate is much more effective.
Les' faith in the legalistic route is baffling in the light of a case with which he is very familiar, namely Cooke, Moores and Iqval v Horshell High School and Surrey LEA. The NASUWT established unfair dismissal and secured some compensation for its members. However, the chairman of the tribunal, in giving his judgment, effectively wrote a textbook on how governing bodies and LEAs could fairly sack teachers. That is now widely used by employers of teachers who have increasingly to deal with selection for redundancy. When legal victories give us these problems. Heaven save us from defeat!
The NASUWT was the first teachers' union to highlight the problem of stress. Since then we have canvassed the entire membership through our publications inviting cases for consideration. We are at this moment actively considering a number. However, the standard of proof required in the courts is extremely high. Disappointingly, Les adopts the rather amateurish approach of assuming that one case (Walker v Northumberland CC 1994) sets easy precedents for others. Anyone the least bit familiar with the law knows that each case has its own particular facts which are crucial to the judgment. Walker v Northumberland CC is no exception. It turned crucially upon the employer allowing an employee to return to work after having suffered a nervous breakdown without providing any additional support and imposing the same workload as before.
Furthermore, there is the very serious problem of victims not willing to go through the enormous stress a court hearing entails. The NASUWT will, I hope never be in the business of placing pressure on these unfortunate individuals in order for the union to secure victories in the courts.
On the European front, the Transfer of Undertakings Protection of Employment precedent quoted by Les is factually incorrect. It was NATFHE, not Unison, that secured the breakthrough.
However, even that legal protection is of limited value without strong and effective unions in the background. A new or private employer merely has to give adequate notice after the transfer for the worsening of terms to be initiated.
The NASUWT has used the TUPE regulations to challenge attempts by employers to worsen conditions of service following employment transfer. To date all such disputes contested by NASUWT have been settled without the necessity of court proceedings.
Les asked how many grant-maintained schools have issued new contracts. The answer, according to a recent parliamentary reply, is one. There are now more than a thousand GM schools. Furthermore, there is no legal right to recognition for trade unions. One or two grant-maintained schools threatened to de-recognise unions. Where this was drawn to the attention of NASUWT we intervened and resolved the problems.
Bearing in mind Les's long experience in casework it is particularly disappointing that he should quote an individual case from Claremont GM High School in Brent. The NASUWT could not publicly explain the decisions it had to take without seriously compromising the interests of the individual members concerned. Often those interests conflicted through no fault of NASUWT. One of the problems the union faced was the intermittent refusal by some to accept its advice. There was never any reluctance on the part of NASUWT to take the appropriate court action. When we did we secured a judgment which set a precedent establishing that governors of GM schools had a statutory obligation to conduct disciplinary action in accordance with lawful procedures, and that furthermore the Secretary of State had the duty under the 1944 Act to ensure compliance.
The figure quoted by Les in connection with Claremont was designed for a specific purpose and that was explained fully to all concerned. The legal advice NASUWT received was that after the successful judicial review, negotiations out of court would produce a much better result than the uncertain path of a full industrial tribunal hearing.
Les accuses NASUWT of inability to deal effectively with intimidating and bullying employers. In two recent cases involving schools in Greenwich and Bradford, NASUWT members stood up, took strike action and secured the removal of the offending management. Where circumstances are right and where the members are willing to stand up the NASUWT will give full support. If Les's accusations are true they are as much a criticism of teachers and employees generally. I am reluctant to criticise people for failing to be heroes. We cannot act without willing members. Everyone knows that in today's circumstances bullying by management is a problem.
NIGEL DE GRUCHY
5 King Street