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

The legislation governing successive fixed-term employment does not prohibit fixed-term employment as such. Its object is to prevent discrimination and the abuse of successive contracts which disguise an employment relationship that is, in reality, indefinite.

Once four years’ continuous employment has accrued, objective justification is required for the latest renewal or successive contract, rather than for the employer’s overarching policy. A renewal may be justified where the employee was engaged for a particular post which could exist only for a limited period, the employer could not continue that posting, and no alternative work was available.

The Secretary of State employed teachers under successive fixed-term contracts for secondment to European Schools. The applicable Staff Regulations limited secondment to nine years, exceptionally ten. Unlike most participating states, the United Kingdom had no permanent state teaching service to which the teachers could return.

The tribunals and the Court of Appeal, in [2009] EWCA Civ 1355, held that the contracts were not objectively justified under regulation 8 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The Court of Appeal also addressed the position of teachers working abroad and the availability of unfair-dismissal remedies.

The principal issue was whether the successive contracts were objectively justified by the compulsory limit on the teachers’ European School secondments. Territorial and remedial issues arose only if they were not justified.

1. The Secretary of State’s appeal on the principal issue was allowed unanimously. Lady Hale, with whom Lord Rodger agreed, gave the leading judgment. Lord Mance, Lord Collins and Lord Clarke agreed that the successive contracts were objectively justified.

2. The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and the underlying Framework Agreement target discrimination against fixed-term workers and abuse arising from successive contracts which disguise an employment relationship that is effectively indefinite. They do not prohibit a single fixed-term contract or require every continuing need for work to be met through indefinite employment.

3. Regulation 8 required justification of the latest renewal or successive contract after four years’ continuous employment. It did not require the nine-year secondment rule itself to be justified. The employment tribunal’s rejection of the educational merits of that rule therefore addressed the wrong question.

4. The teachers were engaged for particular posts in European Schools which could last no longer than the applicable secondment limit. The Secretary of State could not require the Schools to retain them beyond that limit and had no alternative work for them. The existence and operation of the nine-year rule therefore objectively justified the current fixed-term contracts. Those contracts were not converted into permanent contracts by regulation 8.

5. Adeneler, Case C-212/04, was distinguished. It concerned a general national rule permitting an escape from the Directive. The European Schools’ rule was specific to the work and regulated the duration of secondment rather than the duration of employment. There was consequently no inconsistency between that rule and the Directive.

6. The overseas territorial and remedial issues did not require determination. Lady Hale and Lord Mance were inclined to regard teachers employed in the United Kingdom to work in European Schools elsewhere in the European Union as protected by the Fixed-term Regulations, but considered that an authoritative answer might require a reference to the European Court of Justice. Lord Collins expressed no view on that issue.

7. The Court reserved its decision on the teachers’ cross-appeal concerning territorial entitlement to claim unfair dismissal under section 94(1) of the Employment Rights Act 1996.

• United Kingdom Supreme Court: By [2011] UKSC 14, unanimously allowed the Secretary of State’s appeal on objective justification. It reserved judgment on the teachers’ cross-appeal concerning unfair dismissal.
• Court of Appeal: By [2009] EWCA Civ 1355, reported at [2010] ICR 815, upheld the conclusion that the successive fixed-term contracts were not objectively justified. It held that the Fixed-term Regulations applied to teachers working abroad and that an unfair-dismissal remedy should be extended to secure an effective Community-law remedy.
• Employment Appeal Tribunal: Dismissed the Secretary of State’s appeal concerning objective justification and held that the Fixed-term Regulations applied to the overseas teachers. It held that they could not claim unfair dismissal.
• Employment Tribunal: Declared that Mr Fletcher was a permanent employee because the successive fixed-term employment was not objectively justified. It held that the overseas teachers fell outside statutory unfair-dismissal protection.