Debra Allonby was one of 341 part-timer lecturers sacked by her college in 1996 and offered re-employment through an agency. NATFHE has been supporting her in legal actions to secure justice and access to rights enjoyed by directly employed staff. We have made substantial progress in the case; in April the Court of Appeal referred critical questions of equal pay and pension rights to the European Court of Justice.

AN IMPORTANT STEP FORWARD

In 1996 Accrington and Rossendale College in Lancashire decided to sack 341 hourly paid lecturers and offer them re-employment through an agency. The college wanted to cut costs. This way they could avoid the financial obligations that went hand in hand with direct employment because, from then on, such staff would be deemed self-employed.

One of the sacked staff, Debra Allonby, had been teaching information technology at the college for six years. She'd been given more and more hours of teaching and more training. She felt her career was really taking off. After the sacking, Debra returned to work at the college, via agency Education Lecturing Services, on 25 per cent less pay, minus any entitlement to contractual sick pay or similar benefits, with no place in the career structure, and no access to the pensions scheme covering lecturers (now called the teachers' pension scheme).

Debra belonged to NATFHE, which had been raising concerns about the incursion of this agency into post-school education, promoted by the then employers' association. ELS was selling itself on the basis that employers could save money by avoiding the financial obligations attached to the new employment rights for part-timers. The union did not believe employers should be able to get round legislation aimed at protecting workers simply by changing the basis of their employment.

NATFHE supported Debra in her case against the college for the right to redundancy pay, redress for unfair dismissal and indirect sex discrimination as a result of her sacking. It also claimed that she was being discriminated against by the college as a contract worker, that ELS was obliged to pay her equally, ie pro rata with a male full-time lecturer at the college, and that the Department for Education and Employment was acting unlawfully in denying her access as a self-employed worker to the teachers' pensions scheme. The Equal Opportunities Commission joined NATFHE in providing support when the case went to the Court of Appeal.

In pursuing the case on Debra Allonby's behalf, NATFHE wanted to establish that:
• she was entitled to redundancy pay
• her dismissal was unfair
• her dismissal breached the sex discrimination laws (the majority of the 341 sacked being women)
• she should be able to compare herself for pay and other benefits with a worker directly employed by the college whom she was working alongside
• she should have access to the teachers' pensions scheme.

The redundancy claim was settled. In July 1997 an employment tribunal said Ms Allonby couldn't compare herself for equal pay purposes with a male lecturer employed by the college. In 1998 a tribunal decided that the dismissal had been unfair, but attracted no redress, and that it amounted to indirect sex discrimination, but was justifiable. It also turned down sex discrimination claims against the college. In March 2000 all these decisions were upheld by the Employment Appeal Tribunal.

Leave to appeal was granted and, in a landmark decision handed down on 23 March 2001, the Court of Appeal held that:

The employment tribunal had correctly held that Debra Allonby had shown that the college had imposed a requirement that for continuous employment an employee had to have been previously employed on a full-time basis or a fractional contract (the dismissal having fallen entirely on the part-time hourly paid workforce). And she was unable to comply with this requirement.

The ET hadn't properly considered the issue of disparate impact, simply recording that 'a greater proportion of women than men were affected' when, in fact, a finding that the proportion of women able to comply was considerably smaller than the proportion of men would have been more accurate. This was referred back to a new tribunal.

In deciding that the dismissal was discriminatory, but justifiable, and therefore not attracting any redress the tribunal had not properly demonstrated that it had objectively weighed the justification for the requirement against its discriminatory effect. It hadn't asked why college departments couldn't be prevented from overspending on part-time hourly paid teachers without dismissing them, and it didn't consider whether actions other than dismissal could have matched the anticipated savings. It wasn't enough for the tribunal just to have posed the statutory question of 'whether the decision was justifiable irrespective of the person or persons to whom it applied.' The matter was remitted to a fresh tribunal.

An agency worker is entitled, under Section 9 of the Sex Discrimination Act, to compare the terms on which the college allows her to do the work with those afforded to a directly employed worker - except in matters governed by the contract between the worker and ELS. Such terms might cover, in NATFHE's view, facilities like a desk in the staff room, use of canteen facilities, a car parking space, professional indemnity, and staff development opportunities.

The issue of whether Ms Allonby could compare herself with a directly employed man in the college for the purposes of equal pay, and whether she should have access to the teachers' pensions scheme should be referred to the European Court of Justice. Debra Allonby had argued that European law on pay was less restrictive than domestic UK law and that she should be able to compare herself with the male lecturer in the same service or establishment and that in respect of a national pensions scheme like the TSS she shouldn't have to provide a comparator at all.

Costs were awarded against Accrington and Rossendale college and leave to appeal the case to the House of Lords was refused. The college is, however, petitioning the House of Lords for leave to appeal.

Court of Appeal, published 3 April 2001, Allonby v Accrington and Rossendale College and others before Lord Justice Ward, Lord Justice Sedley and Mr Justice Gage. Judgment 23 March 2001.