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University lecturers lose unfair dismissal test case

27 January 2010

Three university lecturers have lost their challenge to the imposition of a national pay agreement. The lecturers, chosen from a group of 68, argued at the EAT that their contracts had been terminated by the change and that they had been unfairly or constructively dismissed.

However, the EAT found that under the Pay Framework Agreement (PFA), their salaries would rise.

Delivering judgment in Bampouras v Edge Hill University (UKEAT/0179/09/ZT), the Hon. Lady Smith said that university lecturers and employers agreed in March 2004 that a single pay scale would be implemented by August 2006.

By July 2006, she said the university had reached agreement with the union representing support staff and “was anxious that the August pay run be in accordance with the PFA”, believing that there were benefits to staff.

Lady Smith said the university also “had genuine concerns that it would be in breach of the equal pay legislation and age discrimination legislation if it persisted in operating the old system”.

The university’s vice chancellor wrote to all staff, asking them to complete and return a ballot paper showing whether or not they supported the process. The lecturers’ union, the University and College Union (UCU), advised its members to boycott the ballot.

The majority of those who replied were in favour of the changes and the university wrote to lecturers on 25 August saying that they were going ahead.

The three test case claimants argued that their terms and conditions were fundamentally changed on that date by the university without their agreement and without a collective agreement.

However, Lady Smith said that two out of the three claimants were under a “misapprehension” as to their true position. The third claimed that by forcing a new contract on him, the university had made him “feel unimportant” and estimated that he was probably technically worse off.

The judge said the question of whether there had been such departure from the original contract as to amount to termination was a question of fact for the tribunal.

Counsel for the university argued that that “there had been lengthy and extensive consultation, that every claimant received a pay rise, that every claimant received a substantial improvement in pay grading and that that occurred as part of a nationally driven imperative which had regard, among other things, to important principles of equality”.

Lady Smith said she was not persuaded that it was not open to the tribunal to conclude that the changes were not such as to amount to a wholesale departure from their contracts.

“Each case will differ according to its own particular facts and circumstances and it is pre-eminently for the tribunal to judge what they amount to and whether it can be concluded that in reality the employer was bringing the old contracts to an end.

“This tribunal judged that the old contracts were not departed from to that extent and that was a conclusion that was open to them on the facts of the case.”

The EAT dismissed the appeal.

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Company, Consumer, and Contract Termination Education Local government