Duncombe & Ors v Secretary of State for Children, Schools & Families

A contract purports to be fixed-term if it states and provides for a fixed term. No sham or false pretence is required. Where successive fixed-term contracts satisfy the statutory conditions, the employer must establish objective justification; the employee need not separately prove abuse.

An international or internal regulatory rule does not itself justify successive fixed-term contracts or override domestic fixed-term protection. The right to permanent employment can arise under an English-law contract performed abroad. However, statutory unfair-dismissal rights remain subject to territorial limits, which must be modified where necessary to provide an effective remedy for an EC-derived right.

Three connected appeals concerned British teachers employed by the Secretary of State and seconded to European Schools under successive fixed-term contracts governed by a maximum Nine Year Rule. The Employment Tribunals and Employment Appeal Tribunal accepted that the fixed-term legislation applied and that the Rule was not objectively justified.

In Mr Fletcher’s case, the Employment Tribunal declared him a permanent employee and the EAT dismissed the Department’s appeal. In Mr Duncombe’s case, the Employment Tribunal rejected wrongful- and unfair-dismissal claims on territorial grounds. The EAT later allowed his wrongful-dismissal appeal but rejected his unfair-dismissal claim. The central issues were the scope of the fixed-term legislation, objective justification, and the territorial availability of contractual and statutory remedies.

1. Disposition. The Department’s appeal in Mr Fletcher’s case was dismissed. Its appeal concerning Mr Duncombe’s wrongful-dismissal claim was also dismissed. Mr Duncombe’s unfair-dismissal appeal was allowed. No reference to the Court of Justice was necessary.
2. Scope of the fixed-term legislation. Regulation 8 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 applied. A contract purporting to be fixed-term included a document which said that it was for a fixed term; the expression did not require a sham or false pretence. The employee did not have to prove abuse separately. The employer had to justify the succession of fixed-term contracts. The hypothetical possibility of using one nine-year contract was irrelevant because the parties had actually used successive contracts of two, three and four years, with an exceptional further year.
3. Objective justification and the Schools regime. The only issue on appeal from the Employment Tribunal was whether there had been an error of law. The Department could not reopen the factual findings or introduce an evidential case which could have been advanced below. The burden remained on the employer, and it could not be discharged merely by asserting that the Nine Year Rule existed or was binding. The Schools Convention and the Staff Regulations did not override the Directive or the implementing Regulations. The Staff Regulations were not part of English or EC law and did not themselves justify the fixed-term arrangements.
4. Contractual claim. Regulation 8 operated without a declaration under Regulation 9(5). That declaration was an additional statutory remedy, not a condition precedent. Regulation 8 therefore altered an English-law employment contract even though it was performed abroad. The resulting right to indefinite employment was enforceable through ordinary contractual remedies. The territorial limits applicable to statutory unfair dismissal did not bar a common-law wrongful-dismissal claim.
5. Unfair-dismissal claim. Section 94(1) of the Employment Rights Act 1996 retained the implied territorial limits explained in Lawson v Serco [2006] ICR 250. Mr Duncombe’s recruitment in Great Britain, English-law clause and lack of a significant connection with Germany did not place him within an unusual exception. Nevertheless, applying the principle in Bleuse v MBT Transport Ltd [2008] IRLR 264, the territorial limitation had to be modified where necessary to vindicate the EC-derived right created by Regulation 8. Otherwise, dismissal solely on expiry of the unlawful fixed term would leave him without an effective remedy.

• Court of Appeal (Civil Division): The Department’s appeal in Fletcher was dismissed; its appeal on Duncombe’s wrongful-dismissal claim was dismissed; Duncombe’s unfair-dismissal appeal was allowed.
• Employment Appeal Tribunal: The EAT upheld the declaration that Fletcher was a permanent employee. It rejected Duncombe’s unfair-dismissal appeal at a preliminary hearing but later allowed his wrongful-dismissal appeal and remitted that claim to a differently constituted tribunal. The proceedings included UKEAT/0095/08/RN and UKEAT/0433/07/dm.
• Employment Tribunals: The tribunals dealt with test cases concerning unfair dismissal, wrongful dismissal and permanent status. Fletcher succeeded on permanent status. Duncombe’s claims were initially rejected on jurisdictional and territorial grounds.