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

JUSTICES: Lord Rodger, Lady Hale, Lord Mance, Lord Collins, Lord Clarke

BACKGROUND TO THE APPEAL

This appeal is concerned with the employment, by the Secretary of State for Children, Schools and Families, of teachers to work in the European Schools. These are schools set up to provide a distinctively European education principally for the children of officials and employees of the European Communities. The Staff Regulations, made by the Board of Governors pursuant to the Convention defining the Statute of the European Schools, limit the period for which teachers may be seconded to work in those schools to a total of nine years (or exceptionally ten). This is made up of an initial probationary period of two years, and a further period of three years, which is renewable for a further four years (‘the nine year rule’).

The principal question in the appeal is whether these arrangements can be objectively justified, as required by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) (‘the Fixed-term Regulations’). This was the measure chosen by the United Kingdom to implement Council Directive 1999/70/EC concerning the framework agreement on fixed-term work (‘the Fixed-term Directive’). The effect of regulation 8 is that a successive fixed-term contract is turned into a permanent employment unless the use of such a contract can be objectively justified.

Mr Fletcher was employed by the Secretary of State and seconded to work in the European School in Culham, Oxfordshire, from 1 September 1998 until 31 August 2008. After his two year probationary period, he was employed for a further three year period, extended for a further four years, and then an additional one year. In 2007, he claimed that he was a permanent employee by virtue of regulation 8.

Mr Duncombe was a teacher at the European School in Karlsruhe, Germany, from January 1996 until 31 August 2006. He too was employed under a series of fixed term contracts to reflect the nine year rule. He brought claims in the Employment Tribunal for wrongful dismissal or pay in lieu of notice, unfair dismissal and a declaration that he was a permanent employee.

The Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal all held that the use of the successive fixed-term contracts is not objectively justified.

JUDGMENT

The Supreme Court unanimously allows the appeal, holding that it was objectively justified to employ these teachers on the current fixed term contracts and accordingly that these were not converted into permanent contracts by the operation of regulation 8 of the Fixed-term Regulations. Lady Hale gives the leading judgment.

REASONS FOR THE JUDGMENT

The teachers’ complaint is not against the three or four periods comprised in the nine year rule but against the nine year rule itself. In other words, they are complaining about the fixed-term nature of their employment rather than about the use of the successive fixed-term contracts which make it up. But that is not the target against which either the Fixed-term Directive or the Regulations are aimed. Employing people on single fixed-term contracts does not offend against either the Directive or the Regulations. [23]

The targets against which the Directive and Framework Agreement were directed were discrimination against workers on fixed-term contracts and abuse of successive fixed-term contracts in what was in reality an indefinite employment. It is not suggested that the terms and conditions on which the teachers were employed during their nine year terms were less favourable than those of comparable teachers on indefinite contracts. [24]

It is not the nine year rule which requires to be justified, but the use of the latest fixed-term contract bringing the total period up to nine years. And that can readily be justified by the existence of the nine year rule. The teachers were employed to do a particular job which could only last for nine years. The Secretary of State could not foist those teachers on the schools for a longer period, no matter how unjustifiable either he or the employment tribunals of this country thought the rule to be. The teachers were not employed to do any alternative work because there was none available for them to do. [25]

It is not a question of whether the Staff Regulations ‘trump’ the Directive. There is no inconsistency between them. The Staff Regulations are dealing with the duration of secondment, not with the duration of employment. [26]

References in square brackets are to paragraphs in the judgment

NOTE

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at:

https://www.supremecourt.uk/decided-cases/index.html