Creating ESOL courses isn’t ‘voluntary work’, says tribunal

A London college group has been ordered to pay over £30,000 to a part-time ESOL lecturer for treating her less favourably than full-time workers.

Capital City College (CCC) agreed to compensate Mrs R King who was not paid for developing two English for Speakers of Other Languages courses. Bosses attempted to argue she carried out this extra work “voluntarily”.

King had been an ESOL lecturer at the now-merged College of North East London from 1989 to 2016 when she was made redundant. She then enrolled on an early years teacher training course at University College London (UCL) for two years.

In September 2018 she was hired again by CCC as an hourly paid lecturer in the School of ESOL under a zero-hours contract and is still employed by the college group.

She brought an employment tribunal claim in 2023 for direct age discrimination, less favourable treatment of part-time workers and a breach of her particulars of employment. 

The tribunal found her complaint of less favourable treatment under the part-time workers regulations 2002 was well founded.

In the summer of 2021, King agreed with her manager she would develop two new ESOL courses named “learn to read and write” and “foundation to pre-entry”, but was not paid for the work.

The court found the college “relied” on King creating the curriculum because “no one else did it” and the college subsequently ran the courses.

King claimed she only received three hours’ pay for the extra work but did not specify how much time it took to develop the courses.

The college argued that because King had an interest in phonics for adults and her previous study at UCL, it meant she did the work voluntarily.

The judge threw out the college’s claim, saying it was not a case where King went “off on a frolick [sic] of her own” to create materials of her volition without telling CCC.

“We do not accept that having expertise and skills to do something and having an interest in it makes it voluntary,” the judge wrote.

“The only other aspect was that the claimant was not paid for the duties and it seems she was told she would not be paid. We do not accept that denying payment makes something voluntary that would not be otherwise,” they added.

‘Significant failure of HR’

A claim of age discrimination was brought against the college for not offering King a fractionalised agreement, whereby institutions must offer salaried contracts to hourly paid lecturers if they work 432 or more hours per annum, averaged over three years.

Ultimately, the judge threw out the claim that King was denied a salaried contract because of her age but ruled there was a “significant failure of HR” regarding a lack of communication with hourly paid lecturers over the fractionalisation process.

The report said: “We accept that the decisions about fractionalisation were made around the summer near the end of an academic term so that somebody was fractionalised or given a salary contract during the summer and then came back salaried in September and this may have taken the claimant by surprise.”

Her key duties were to teach, prepare lessons, mark students’ work and attend meetings if required. An hourly paid lecturer was not expected to develop curricula, invigilate or participate in professional development, unlike salaried employees.

King carried out the duties that were not part of her contract between 2021 and 2022, such as providing training sessions to colleagues and taking class trips.

The college accepted these duties were beyond those of an hourly paid lecturer but again argued she was doing the extra work voluntarily.

“We find that these were duties that fell within the duties of the comparator and to that extent were broadly similar,” the report noted.

Overall, the tribunal found King suffered less favourable treatment in relation to pay as her comparator would have been paid for the curriculum duties, and she was not.

The report concluded: “It still remains that the full-time comparator pro rata’d would have received pay for more hours (six hours per week for non-teaching duties) resulting in more pay than the claimant received for carrying out broadly similar duties. It is the non-payment of these six hours per week which is the less favourable treatment relating to pay.”

King will be paid a gross sum of £30,531.58, comprising over £23,000 in basic pay, £1,370 in sick pay and over £6,000 in employer pension contributions.

A CCC spokesperson said: “This matter is being considered through the appropriate legal process. We have no further comment to make.”