Teachers' union may face legal action over boycott

The Government is threatening to take legal action if teachers boycott national curriculum tests for 2 million pupils aged 7, 11 and 14.

Charles Clarke, the Secretary of State for Education, has made clear that "it is the obligation of the Government to uphold the law" and ensure the tests go ahead. Delegates at the National Union of Teachers' annual conference voted unanimously this week to back a boycott of the tests next year.

They claimed the tests put too much strain on pupils and stifled creativity. Teachers taught to the tests to avoid faring badly in school league tables. Union leaders said they would seek the backing of parents to persuade ministers to abandon the tests and hold a ballot on a boycott in the autumn if they failed to do so.

Teachers' leaders are confident of winning support for a boycott. They say the ballot will be timed to stop any preparatory work on the tests in the next school year.

Mr Clarke says he can see no reason for teachers refusing to work on the tests and that he could seek an injunction preventing industrial action.

A spokesman for the Department for Education and Skills said: "We are not at this stage ruling out a court action."

Legal action was taken against the National Association of Schoolmasters Union of Women Teachers when it boycotted the same tests 10 years ago. Conservative-controlled Wandsworth Council in south London took the union to court, claiming its action was "political" rather than an industrial dispute over workload.

In the end, the union won the right to take action after insisting it was only a dispute over workload – and that the introduction of the tests had overloaded staff with extra marking. The dispute was settled when the Conservative government of the day used external markers for the tests at 11 and 14.

This year, though, speaker after speaker at the NUT conference declared that they would be taking action because they objected to the tests on educational grounds. The union's lawyers have advised that a boycott on the tests would be legal.

Doug McAvoy, general secretary of the NUT, has argued that the dispute is concerned with the professional judgement of the teachers and the constraints put upon it – and therefore would be legal.

He said yesterday Mr Clarke would have to decide whether to go to court but added: "It would be better for pupils if he acknowledged the concerns of teachers and parents and agreed to talk to us."

At the Association of Teachers and Lecturers' annual conference, where a motion to boycott the English tests for 14-year-olds was debated and defeated, Philip Lott, the union's solicitor, told delegates he could only give them a "qualified assurance" that the dispute would be legal. "Industrial action, in order to be legal, has to be taken on an issue of conditions of employment," he said. "It is highly dangerous to take industrial action on an issue that's deemed to be political or indeed, sadly, educational."