National Union of Teachers: Supplementary Submission on Supply Teachers’ Pay 1. This supplementary submission is made in response to the RIG submission’s proposals for the pay of supply teachers. 2. The National Union of Teachers believes that the RIG proposals are based on a flawed understanding of the judgement of the European Court of Justice (ECJ) in the Robinson-Steel case, details of which are set out in Appendix 1, and assume as valid and acceptable precisely the problem which the NUT has identified in its evidence. 3. Further, in its mistaken understanding of the application of the EU Working Time Directive, the RIG evidence does nothing to rectify the inequalities which result from the practices permitted by the existing arrangements and which disadvantage supply teachers contrary to the domestic regulations relating to part-time and fixed term contract workers which implement EU Directives. 4. The daily rate paid to supply teachers has never been expressed as including an element of holiday pay. The calculation of the rate as 1/195th of the annual salary of an equivalent salaried teacher has an entirely different origin. Its purpose was to ensure that if a supply teacher secured work on every working day of a school year, he or she would receive the same total sum as a regularly employed teacher. 5. This purpose was exemplified by a provision in the Burnham Reports and now in the School Teachers’ Pay and Conditions Document to the effect that a supply teacher who secured work on each working day of a year should not receive a total more than the equivalent annual salary. 6. The RIG evidence glosses over the fact that the existing provisions refer to teachers’ employed on a ‘day-to-day’ basis. As suggested by the NUT in its principal evidence, the phrase which is added to this “or other short notice basis” has lost any meaning it had. What is actually being considered in the discussion of the pay of supply teachers is the pay of teachers whose contracts are for one day at a time. The Pay and Conditions Documents, like the Burnham Reports before them, have fixed the ‘consideration’ or remuneration under that contract to a stated fraction of the equivalent annual salary. To extrapolate from this, as the RIG evidence does, that there is a holiday pay element in the remuneration so calculated is simply false. The facts of the cases considered by the ECJ and a proper identification of the issues being addressed by the court, as set out below, show that it is false. 7. In the ECJ cases, the question was as to whether the contractual arrangements under which the workers in question were employed satisfied the requirements of Article 7 of the Working Time Directive, the purpose of which is “to put the worker during [annual] leave in a position which is, as regards remuneration comparable to periods of work” – see Paragraph 58 of the ECJ decision in joined cases C-131/04 and C-257/04. 8. The ECJ also identified at paragraph 61 of the judgement that feature of the cases before it which contravened the purpose of Article 7. It said: “A regime such as that referred to by the questions at issue may lead to situations in which, without the conditions laid down in Article 7(2) of the directive being met, the minimum period of leave is, in effect, replaced by the allowance in lieu.” 9. The ensuing judgement has to be understood in this context. Article 7(2) is part of the right to annual leave. It does not create a free standing right independent of the entitlement to leave. It prohibits a pay arrangement under which a worker can be effectively discouraged from taking leave by a reward in lieu. 10. This reasoning plainly has no logical application to a situation like that of supply teachers who accept work on a daily basis when work is available and for whom no work is available during school closure periods. They are not denied any right to leave. Their ‘leave’ is dictated by the unavailability at particular times of work of the kind for which they make themselves available. The ECJ judgement is simply not addressed to the case of a worker who takes work on a day-to-day contract basis. 11. Further, even if that were not correct, the RIG evidence itself contains reference to a factor which shows that its reliance on the ECJ decision in Robinson-Steel is flawed. The RIG evidence points out that there is no objection to an element of holiday pay being included in a payment made at the end of a contract. In circumstances in which each contract for a supply teacher is a contract for a day, plainly, even if RIG were right in its suggestion that the reasoning in the Robinson-Steel judgement raises an issue for consideration, there is still no need for the solution it proposes. 12. The NUT does not fail to recognise that there is a problem by reference to the Working Time Directive. It is, however, only a problem that arises because currently the STPCD appears to permit the use of day-to-day contracts to engage teachers in the same post for extended long periods of time. This is clearly not what the daily rate arrangement was designed for. It is an abuse of the existing provisions and the NUT is asking the STPCD to make recommendations to prohibit that abuse. 13. It is also an abuse which the NUT considers to be unlawful. RIG is in fact proposing an arrangement for supply teachers pay which it says is necessary to correct a failure to comply with the EU Working Time Directive. That problem, however, arises only because of a practice which is, in other respects, unlawful. 14. Only when day-to-day contracts are used to engage teachers for periods of time which extend on either side of a school closure period does a pattern of employment occur of the kind which was of concern to the European Court of Justice in the Robinson-Steel case. The rule against ‘rolled-up’ holiday pay exists to prevent rolled-up pay being used as a disincentive to taking the holiday entitlement required by the Directive. It does not exist to prevent the fixing of a daily rate for day-to-day contracts equivalent to the daily earning of a comparable salaried worker in circumstances in which it cannot operate as a disincentive to taking holidays. That is the reality for day-to- day contract supply teachers. 15. The NUT proposals would prohibit the use of day-to-day contracts for teachers working extended periods. 16. It is the practice which the NUT seeks to have prohibited which is in fact discriminatory. The employment of a teacher in a single post for extended periods spanning a termly school closure period should be salaried so that they would be paid during school holidays. There is no good reason for such extended employment to be on day-to-day contracts. Those teachers who are employed for extended periods in this way are disadvantaged in comparison with their regularly salaried colleagues. 17. Paragraphs 1.1 and 1.2 of Section 2 of the Burgundy Book ‘Conditions of Service for School Teachers in England and Wales’ define the teachers to whom the various provisions of the Burgundy Book apply. Teachers employed on day-today contracts are covered only by paragraph 5 and 6 of Section 3 (Health Standards and Retirement), paragraphs 1, 2 and 4 of Section 6 (Leave for Examinations and Public Service), Section 7 (Grievance and Discipline), and paragraphs 1 and 2 of Section 8 (Insurance and Travel Allowances). They have no contractual entitlements to sick leave, maternity leave or notice. As fixed term and part-time teachers, they are treated less favourably than their salaried colleagues. When they are employed for extended periods on day-to-day contracts they are treated less favourably with no justification. That treatment is unlawful. The RIG proposal fails to address that. 18. These issues are not new. Paragraph 1.1 of Section 3 of the Burgundy Book provides: “Teachers shall be paid salary in accordance with the terms of the School Teachers’ Pay and Conditions Document by monthly instalments and should receive not less than one- third of a year’s salary for each full term’s service. For the purpose of these arrangements the three terms in each year shall be constituted as follows: the Summer term from May 1 to August 31; the Autumn term from September 1 to December 31; the Spring term from January 1 to April 30.” 19. The purpose of this paragraph is to ensure the application of the principle of one-third of an annual salary (four months) for each term’s actual work. It does not apply to day-to-day contract teachers because it is assumed that day-to-day contracts will not be used for extended engagements. This is actually the provision which should operate to prevent rolled-up holiday pay. It has applied to teachers long before the Working Time Directive was adopted as EU law. What has gone wrong is that a bad practice which has developed in the use of day-to-day contracts has upset the assumption on which it is based. 20. The RIG proposal is not, therefore, necessitated by the EU Working Time Directive nor by the ECJ decision in Robinson-Steel. Rather it is provoked by bad practice in the application of the Burgundy Book and the current STPCD provisions on the pay of supply teachers. The RIG proposal if adopted would institutionalise that bad practice leading to widespread breach of the EU directives on part-time and fixed term work and the domestic regulations implementing those directives. Further given the disproportionate impact on women in the part-time teaching workforce, it is possible that the effect would also be indirectly and unlawfully gender discriminatory. Were the RIG proposals to be recommended by the STRB and adopted by Government, the NUT would expect to be challenging the effects in the Tribunals and in the Courts. 21. The NUT proposal deals with all these issues avoiding discrimination against part time and fixed term contract holders and we therefore again ask the STRB to make its recommendations in accordance with the NUT’s original submission. Appendix 1 The European Court of Justice considered together three cases referred to it by the Leeds Employment Tribunal (Robinson-Steele) and the Court of Appeal (Clarke and Caulfield. Given their full titles they were – C. D. Robinson-Steele v. R. D. Retail Services Ltd, Michael Jason Clarke v. Frank Staddon Ltd, J. C. Caulfield and others v. Hanson Clay Products Ltd, formerly Marshalls Clay Products Ltd. The facts in each case were as follows – 1. Robinson Steele Mr Robinson-Steele worked for R.D. Retail Services Ltd (‘Retail Services’) between 19 April 2002 and 19 December 2003. Retail Services provides the services of its workers to large undertakings in the retail sector. The workers perform the services of shop-fitting and stacking shelves. Mr Robinson-Steele worked either day shifts of 12 hours each over five days or night shifts also of 12 hours each over four days, continuously throughout that period of employment except for one week of leave over the Christmas period in 2002, for which he was not separately paid. His contractual terms varied during his period of employment. From 29 June 2003, he worked pursuant to a contract which had as its title ‘Terms of Engagement for Temporary Workers’. The relevant term of the contract provides: ‘Entitlement to payment for leave accrues in proportion to the amount of time worked continuously by the Temporary Worker on Assignment during the leave year. The Temporary Worker agrees that payment in respect of the entitlement to paid leave shall be made together with and in addition to the Temporary Worker’s hourly rate at 8.33% of his hourly rate.’ The referring court explains that, mathematically, an 8.33% leave pay element does produce the correct sum to reflect one week’s pay after the worker has worked continuously for three months on the alternating day and night shift pattern in question. Mr Robinson-Steele received his wages on a weekly basis. His rate of remuneration was GBP 6.25 per hour for day shift working and GBP 7.75 per hour for night shift working. His pay slips bore these words: ‘Pay rate includes compensation for hols [holidays] & sick days’. 2. Clarke According to the referring court, it seems that Mr Clarke worked for Frank Staddon from 2 April to 23 June 2001. He was then on holiday until 24 July 2001 when he went back to work with the company. He was not paid between 23 June 2001 and 24 July 2001. Mr Clarke’s contract stipulated: ‘All Holiday and Bank Holiday pay is included within the daily rate.’ The same document contains a manuscript annotation against the words ‘Rate of pay’: ‘Basic 8.689 Holiday 0.756 = £85 per day’. A pay slip apparently dated August 2001 showed the same breakdown. The rate of GBP 85 per day relates only to the period commencing on 24 July 2001. The daily rate in effect on 2 April 2001 was GBP 80 and increased to GBP 82.50 in June. It seems that Frank Staddon did not provide the breakdown relating to the amount of holiday pay included in the daily rate before August 2001. 3. Caulfield The company Marshalls Clay Products Ltd (hereinafter ‘Marshalls Clay’) carried on its business in the field of manufacturing clay products for the building trade. Messrs J.C. Caulfield, C.F. Caulfield and Barnes (hereinafter ‘Mr Caulfield and Others’) were employed by that undertaking as general operators. In 1984, Marshalls Clay introduced a ‘continental’ system of shift work, which meant that each employee worked four days on and then four days off. During the period under consideration the factory where Mr Caulfield and Others worked, at Accrington, operated seven days a week except for Christmas Day and Boxing Day. The employees were paid only on the four days when they worked and not therefore on the four days when they did not work. A local collective agreement which was entered into on 9 July 1984 following a meeting between Marshalls Clay and the GMB Union and incorporated into the contract of employment of each employee provides: ‘3. HOLIDAYS Holiday pay is incorporated in the hourly rate of pay, so there is no accumulation of holiday pay. Holidays are taken during the rest day periods in the rota system. In order that extended periods of leave can be accommodated, each person will be entitled to: two 8 consecutive day periods and one 16 consecutive day period. These periods will be agreed locally. (This means that when one shift takes a period of leave, whether 8 days or 16 days consecutively, the other shift will be working.)’ That collective agreement also states: ‘Presently Accrington operatives enjoy 31 days’ holiday pay per annum (for 29 days’ holiday). As a proportion of the other days worked (232) this is 13.36%. Hourly rates include 13.36% holiday pay.’ The hourly rates apply to overtime also, so that in fact if and when employees work overtime, they receive, depending on the precise time or times worked, which also forms part of the collective agreement, rates of 30%, 50% or 100% extra, in respect of both basic rates and holiday pay. According to the Employment Appeal Tribunal, under those contractual arrangements employees can, but do not have to, take two periods of leave of eight consecutive days or one period of leave of 16 consecutive days, but only by pooling or collecting their rest days and, by a mutually agreed series of exchanges, working other people’s shifts. Each of the appellants in the main proceedings in Caulfield and Others took a holiday in June 2001. The periods varied, the longest being 16 days. The appellants also took rest days. Under Marshalls Clay’s shift work arrangements, Mr Caulfield and Others were each rostered to work 182 days per year. Pursuant to the collectively agreed terms relating to holiday pay, 13.36% of the appellants’ pay was in respect of holiday. In other words, for working 182 days per year, each appellant received 24.32 days’ holiday pay: within each GBP 7.515 paid per hour worked, GBP 6.629 related to the time actually worked and 88.6p constituted the addition to take account of holiday pay. 4. Summary In each of these cases the court was considering factual evidence that holiday pay was specifically expressed as being incorporated into normal pay and the employees concerned took holidays between periods during which they worked for their employers. The Court was not concerned with cases in which the employees were engaged on contracts for one day at a time. These cases are only paralleled by those of supply teachers who work in extended engagements in the same post on day to day contracts. It is this abuse of the day to day employment system in relation to supply teachers which causes their cases to be considered similar to those of the claimants in the above cases. The judgement does not therefore invalidate in any way payments to short notice teachers on the 1/195 fraction of their annual pay entitlement.