Duncombe and others v Secretary of State for Children, Schools and Families

The Supreme Court considered whether the Secretary of State's use of successive fixed-term contracts for teachers seconded to the European Schools could be objectively justified under regulation 8 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, implementing Council Directive 1999/70/EC. The Court held that regulation 8 targets the abuse of successive fixed-term contracts and requires objective justification only for the renewal or successive contract once four yearscontinuous fixed-term employment has elapsed. The nine-year rule in the European Schools' Staff Regulations limiting secondments to nine (exceptionally ten) years provided objective justification for the final fixed-term renewals because the Secretary of State could not lawfully require the schools to accept a longer secondment and had no alternative work to offer. The Court therefore allowed the Secretary of State's appeal and held that the contracts were not converted into permanent contracts by operation of regulation 8.

The claimants were teachers employed by the Secretary of State specifically to be seconded to the European Schools, where the Staff Regulations (adopted by the Board of Governors under the Schools Convention) limit individual secondments to a maximum of nine years (with a possible exceptional tenth year). Most claimants argued that, as a result of successive fixed-term contracts, their employment should convert to permanent employment under regulation 8 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, which gives effect to Council Directive 1999/70/EC.

• Nature of the claims: declarations of permanent employment under regulation 8, wrongful dismissal or pay in lieu of notice, and unfair dismissal in some cases. The remedies issue and whether domestic unfair dismissal protection extended to those employed to work outside the United Kingdom were also argued.
• Procedural history: Employment Tribunal (declaration in favour of claimant(s)), Employment Appeal Tribunal and Court of Appeal (reported at [2010] ICR 815 and [2009] EWCA Civ 1355) which rejected the Secretary of Stateon the principal point; the Secretary of State appealed to the Supreme Court. Some cross-appeals raised the Lawson v Serco point about the territorial scope of unfair dismissal protection.

The Supreme Court framed the principal issue as whether the continued use of successive fixed-term contracts in this context could be objectively justified. The Court emphasised that the Fixed-term Directive and the implementing regulations are aimed at preventing discrimination and abuse arising from successive fixed-term contracts that disguise an indefinite employment, not at outlawing fixed-term employment per se. The court concluded that it was the latest fixed-term renewal that required objective justification once four years' continuous fixed-term employment had been reached, and that the nine-year rule governing secondments provided such an objective justification in the particular context because the Secretary of State had no power to secure longer secondments and no alternative work to offer the teachers. The Court found Adeneler inapposite and rejected the contention that the Staff Regulations automatically conflicted with the Directive. On the related questions whether the Fixed-term Regulations apply to employees posted to work outside the United Kingdom and whether statutory unfair dismissal protection applies to such employees, the Court indicated the issues were important but either unnecessary to decide or to be reserved for later determination (including potential reference to the European Court of Justice if needed). The remedy question and the territorial scope of unfair dismissal under Lawson v Serco were left for further consideration.

Appeal allowed. The Supreme Court held that the Secretary of Statewas objectively justified in employing the teachers on fixed-term contracts that mirrored the nine-year secondment rule in the European Schools' Staff Regulations; regulation 8 of the Fixed-term Regulations therefore did not convert those contracts into permanent contracts. The Court reasoned that the Fixed-term Directive/regulations address abuse of successive fixed-term contracts rather than fixed-term secondments required by an international regime, and that the Secretary of State had no practical alternative to mirror the Staff Regulations.

Employment Tribunal (declaration for claimant(s) 16 November 2007); Employment Appeal Tribunal (appeal dismissed); Court of Appeal [2009] EWCA Civ 1355, reported at [2010] ICR 815 (Secretary of State's appeal dismissed); appeal to the Supreme Court [2011] UKSC 14.