Law Report: Teachers' tests boycott is lawful: Wandsworth London Borough Council v National Association of Schoolmasters/Union of Women Teachers. Court of Appeal (Lord Justice Neill, Lord Justice Steyn and Lord Justice Rose), 23 April 1993

Although the union had criticisms to make about the national curriculum on educational grounds, its instruction to its members to boycott certain tests and assessments specified in the national curriculum was concerned with the excessive workload, imposed by the national curriculum, on teachers. The union's action related mainly to the terms and conditions of teachers' employment, was therefore in furtherance of a trade dispute and was protected from liability in tort.

The Court of Appeal dismissed an appeal by the council from Mr Justice Mantell's refusal on 2 April 1993 to grant injunctions to restrain the union from instructing its members to boycott national curriculum testing and assessment procedures.

The council, as local education authority, employs teachers who are members of the union. Some of the terms and conditions of their employment are prescribed by the Secretary of State for Education. Since 1990 the union has proposed that no teacher should have to work more than 35 hours in one week.

The Education Reform Act 1988 contains provisions for a national curriculum defining core subjects and key stages in a pupil's assessment. In June 1993 the first statutory assessment tests in a key stage 3 will be administered. The union claims that the 1988 Act imposes a massive increase in teachers' workload. However, the union was unable to secure any limit to working hours.

In 1993, the union balloted its members, posing the question: 'In order to protest against the excessive workload and unreasonable imposition made on teachers, as a consequence of national curriculum assessment and testing, are you willing to take action, short of strike action?' In March, 88 per cent voted in favour of a boycott of certain areas of work.

The council sought injunctions to restrain the union from inducing breaches of contracts by its members.

Patrick Elias QC, and Nigel Giffin (Borough Solicitor) for the council; Jeffrey Burke QC, and David Bean (Robin Thompson & Partners) for the union.

LORD JUSTICE NEILL, giving the court's judgment, said that the dispute was not between the union and the council but between the union and the Secretary of State for Education. The central question was whether this was a trade dispute as defined in section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992. It was for the union to establish that it was protected by section 219 from liability in tort because a trade dispute existed.

The union's case was that there was a trade dispute within section 244(2)(b) between the union and the Secretary of State because there was a dispute which related wholly or mainly to the terms and conditions of employment of its members and the dispute could not be settled without the Education Secretary exercising his statutory powers by limiting teachers' working time or by modifying their professional duties.

The council argued that the dispute was not about working time but a dispute about the content of the work which the national curriculum required teachers to undertake.

The question to be determined was one of fact. The court had come to a clear conclusion. Since 1990 there had been increasing concern expressed by the union with regard to working time. That concern came to a head as the date for key stage 3 testing approached. It was quite clear that members of the union had criticisms to make about the national curriculum on educational grounds. But of most concern to the union was the excessive and unnecessary workload imposed.

The court also attached considerable importance to the wording of the question posed in the ballot paper. The dispute did mainly relate to the terms and conditions of employment of the union's members and was a trade dispute within section 244.

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