The Secretary of State for Education v National Union of Teachers

JurisdictionEngland & Wales
JudgeMr Justice Kerr
Judgment Date14 March 2016
Neutral Citation[2016] EWHC 812 (QB)
Docket NumberCase No: HQ16X00848
CourtQueen's Bench Division
Date14 March 2016

[2016] EWHC 812 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London

WC2A 2LL

Before:

Mr Justice Kerr

Case No: HQ16X00848

Between:
The Secretary of State for Education
Claimant
and
National Union of Teachers
Defendant

Mr Clive Sheldon QC and Mr Marcus Pilgerstorfer (instructed by The Government Legal Department) appeared for the Claimant

Mr John Hendy QC and Mr Stuart Brittenden (instructed by The National Union of Teachers' Solicitor Department) appeared for the Defendant

Mr Justice Kerr
1

The defendant, the National Union of Teachers ("the NUT"), has called a day of industrial action tomorrow, 15 March 2016. The NUT has called on several thousand teachers, who are NUT members working at 92 sixth form colleges in England, to take part in a one-day strike. The claimant, the Secretary of State, asks the court to make an urgent interim declaration today that the strike is unlawful.

2

The Secretary of State is responsible by statute (section 14 of the Education Act 2002) for the funding of education, including education provided at sixth form colleges in England. They are funded through the Education Funding Agency ("EFA"), an executive agency of the Department for Education ("the Department"). The colleges were established as statutory corporate bodies under sections 15 and 16 of the Further and Higher Education Act 1992. They are autonomous and independent institutions.

3

The colleges employ the teachers who teach there. The Secretary of State does not. The colleges are members of the Sixth Form Colleges Association ("the SFCA"). The SFCA represents their interests in national negotiations on pay and conditions of service with the trade unions, including the NUT, representing college employees. The negotiations take place through the National Joint Council for Staff in Sixth Form Colleges, which establishes terms and conditions for sixth form college teachers at national level.

4

In 2015, the Secretary of State indicated that she would not increase funding for education for 16 to 19-year-olds in 2016. The SFCA and the trade unions called for increased funding, but the Secretary of State was not willing to provide any. In July 2015, the NUT sought a 1% pay increase for teachers at sixth form colleges. Their pay had fallen behind that of school teachers and they wished to restore parity. The SFCA's position had historically been that it was committed in principle to parity as between sixth form college teachers and school teachers, but that it could not afford to restore parity because of the absence of sufficient funding from central government.

5

The SFCA's response to the demand for a 1% pay increase for sixth form college teachers was that it was unable to make any pay offer due to the impact of reductions in available funding. After further negotiations, however, in November 2015 the SFCA offered a pay increase for sixth form college teachers of 1% from 1 January 2016.

6

On 20 January 2016, the NUT's General Secretary, Ms Christine Blower, met representatives of the Department and said that the NUT would be in dispute with the Secretary of State over the funding of sixth form colleges. The next day, she wrote to the Secretary of State referring to representations made in the past about the impact of reduced funding on the sixth form college sector and the "consequential detrimental effects on pay, duties and working conditions as well as the loss (and threat of loss) of jobs and paid duties of NUT members in the sector".

7

In the same letter, the General Secretary informed the Secretary of State that:

Unless I receive your undertaking by 12.00 of 28 January 2016 that you will exercise your power under s.14(1) and (2)(a) and (i) Education Act 2002 (as amended) so as, by the beginning of the colleges' 2016–2017 financial year, to increase substantially the amount of financial assistance given and to be given to sixth form colleges for the purpose of providing education to 16–19 year olds in those colleges and, in particular, for the purpose of providing remuneration and other benefits to their teachers, the members of this union in those sixth form colleges will be in dispute with you and my union will take the necessary steps leading to industrial action. I, and my team remain ready to negotiate with you and your officials at any reasonable time to resolve this dispute.

8

The General Secretary went on to say that the guarantee was being sought so as to provide for improvements to teachers' terms and conditions, including pay and to avoid terminations of employment or of paid employment duties due to lack of sufficient funding from the secretary of State. She explained that the demand was addressed to the Secretary of State because:

the sixth form colleges who employ the teachers are simply not in a financial position to provide the substantive guarantee sought unless and until you exercise your statutory power under the 2002 Act to increase their funding….

9

The letter concluded:

I have to tell you that our members have had enough. Their demand is therefore not merely for a cessation of the adverse consequences on them which I describe above, they demand a reversal of these effects and a significant improvement in their working lives and remuneration. This can only be achieved by you making more, significantly more funding available to the colleges.

Nonetheless, this dispute could be settled by your Department withdrawing its proposals for 16–19 year old education funding for 2016–17 and instead increasing that funding to the levels which existed prior to the Coalition Government's commencement of funding cuts. That would allow sixth form colleges to restore teachers' pay and working conditions and allow the SFCA to conclude an agreement with us on appropriate pay increases.

10

The guarantee not being forthcoming, on 29 January the General Secretary wrote again to the Secretary of State, notifying her that the NUT intended to conduct a ballot from 8 February 2016 for a day's strike action "as part of the Union's campaign in opposition to the funding settlement in the sixth form college sector which will result in detrimental changes in terms and conditions for our members. The dispute is with you as the Secretary of State for Education." Notice of the intended ballot was also served on the colleges affected and on the SFCA.

11

The Secretary of State replied the same day, expressing her disappointment and urging the union to reconsider. The ballot on industrial action proceeded from 8 February 2016. The question on the ballot paper was:

In order to persuade the Secretary of State for Education to increase presently inadequate funding levels which cause detrimental changes to terms and conditions within the sixth form college sector are you prepared to take a day's strike action?

12

The Government Legal Department ("GLD") was then instructed and correspondence ensued between Mr Campbell Kennedy of the GLD and the NUT and subsequently its senior solicitor, Mr Clive Romain. In the course of that correspondence, the parties debated the legal arguments but were unable to agree on whether the proposed strike would be lawful or unlawful.

13

On 29 February, the ballot result was available and was notified to the Secretary of State and to the colleges. On a turnout of about 44%, 86.1% of those voting, excluding one invalid vote, voted in favour of the strike action, and 13.9% against.

14

Also during February 2016, agreement was reached between the NUT and the SFCA that the 1% increase for sixth form college teachers would take effect from 1 September 2015.

15

On 29 February 2016, the day the ballot result was announced, the Joint Secretaries of the National Joint Council for Staff and Sixth Form Colleges ("the JNC") wrote to the principals of the sixth form colleges informing them that agreement had been reached for a 1% pay increase for teaching staff on all points of the NJC pay scales and on London and fringe areas allowances, backdated to 1 September 2015.

16

Returning to the 29 February letter from the NUT notifying the Secretary of State of the ballot result, the General Secretary stated:

I hereby give notice that the Union will be calling upon 3866 NUT members to take a day's strike action on Tuesday, 15 March 2016.

The letter concluded with a statement that the General Secretary had informed the employers that the union remained willing to negotiate with the Secretary of State to settle the dispute.

17

Mr Kennedy of the GLD then wrote again to Mr Romain on 7 March, stating that an application to the court would be made the next day. The proceedings were then brought on 8 March 2016.

18

The claim is brought under CPR Part 8. Pursuant to section 19 of the Senior Courts Act 1981 and CPR 40.20, the Secretary of State seeks an "urgent declaration that industrial action threatened by the Defendant to commence on 15 March 2016 is unlawful…." By an application notice, also issued on 8 March, the Secretary of State sought a speedy trial or if that were not possible an urgent interim declaration pursuant to CPR 25.1(1)(b) that the proposed strike action is unlawful, pending a trial. A speedy trial is not possible within the timescale. The matter was therefore argued before me today as an application by the Secretary of State for an urgent interim declaration.

19

I am grateful for the parties and their legal representatives for co-operating to make today's hearing possible and, in particular, for providing me with their main skeleton arguments and authorities before the start of the weekend. The parties through leading counsel, Mr Sheldon QC...

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