Duncombe and others v Secretary of State for Children, Schools and Families (No 2)

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

BACKGROUND TO THE APPEAL

The case relates to the unusual employment status of teachers employed by the Secretary of State for Children, Schools and Families 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 main issue in the appeal was whether the terms of that employment fell foul of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) which implemented Council Directive 1999/70/EC concerning the framework agreement on fixed-term work. The Supreme Court handed down judgment on 30 March 2011 allowing the appeal of the Secretary of State on that issue: [2011] UKSC 14. The Court reserved judgment in the cross-appeal of the teachers. The issue in the cross-appeal is whether their employment is covered by the protection against unfair dismissal conferred by section 94(1) of the Employment Rights Act 1996.

JUDGMENT

The Supreme Court allows the cross-appeal. Lady Hale delivers the judgment of the court. The employment has such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it is right to conclude that Parliament must have intended that the employees should enjoy protection from unfair dismissal. The case will return to the Employment Tribunal.

The application of the Ministry of Defence for permission to appeal on this point in the cases of Ministry of Defence v Wallis and Grocott [2011] EWCA Civ 231 will be dismissed.

REASONS FOR THE JUDGMENT

It is common ground that the basic principle was laid down by the House of Lords in Lawson v Serco Ltd [2006] UKHL 3, [2006] ICR 250. It is also common ground that these teachers’ employment does not fall within either of the specific examples given in Lawson of people employed by British employers to work outside Great Britain who would be protected from unfair dismissal. The question is whether there are other examples of the principle, of which this is one. [3].

These cases do form another example of an exceptional case where the employment has such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it is right to conclude that Parliament must have intended that they should enjoy protection from unfair dismissal. This depends upon a combination of factors. First, their employer was based in Britain; and not only based here but the Government of the United Kingdom. Second, they were employed under contracts governed by English law; the terms and conditions were either entirely those of English law or a combination of those of English law and the international institutions for which they worked. Third, they were employed in international enclaves, having no particular connection with the countries in which they happened to be situated and governed by international agreements between the participating states. Fourth, it would be anomalous if a teacher who happened to be employed by the British government to work in the European school in England were to enjoy different protection from the teachers who happened to be employed to work in the same sort of school in other countries. [16].

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