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

The first European School was established in 1954 for the children of officials of the European Coal and Steel Community, by agreement between the original six Member States. This later became the Statute of the European Schools and Protocol on the Setting Up of the European Schools of 1957. In 1994, the Member States and the European Communities adopted the Convention defining the Statute of the European Schools (‘the Schools Convention’), which consolidated, updated and amended the original Statute.

The Regulations for Members of the Seconded Staff of the European Schools 1996 (the ‘Staff Regulations’) were made by the Board pursuant to Article 12 of the Schools Convention. Articles 28 and 29 of those Regulations define the terms for which teachers may be seconded: an initial probationary period of two years (article 28(1)); a further period of three years (article 29(a)(i)); renewable for a further period of four years (article 29(a)(i)); subject to a maximum period of nine years, although a further one year extension may be granted in special cases (article 29(a)(ii)). This was what was came to be referred to as ‘the nine year rule’.

The issue in the matter was regarding the employment, by the Secretary of State for Children, Schools and Families, of teachers to work in the European Schools. 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 was made up of an initial probationary period of two years, and a further period of three years, which was renewable for a further four years.

The principal question was whether arrangements could 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 concluded by ETUC, UNICE and CEEP (‘the Fixed-term Directive’). The effect of regulation 8 was that a successive fixed-term contract is turned into a permanent employment unless the use of such a contract could be objectively justified.

The Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal held that the use of successive fixed-term contracts for teachers was not objectively justified. In the case of teachers employed to work in schools outside the United Kingdom, the Employment Appeal Tribunal and the Court of Appeal held that the Fixed-term Regulations do apply. However, the Employment Tribunal and the Employment Appeal Tribunal held, applying the test in Lawson v Serco Ltd [2006] UKHL 3, [2006] ICR 250, that the teachers were not entitled to make claims for unfair dismissal. This meant that they were limited to their contractual notice rights. The Court of Appeal held, applying the principle in Bleuse v MBT Transport Ltd [2008] ICR 488 that it was necessary to extend the remedy of unfair dismissal to them in order to give them an effective remedy for breach of their rights in Community law. The Secretary of State appealed against the decision of the Court of Appeal.

The Board observed that teachers’ complaint was not against the three or four periods comprised in the nine year rule but against the nine year rule itself. In other words, they were 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 the Board observed that was not the target against which either the Fixed-term Directive or the Regulations was aimed. Had the Secretary of State chosen to offer them all nine year terms and took the risk that the schools would not have kept them for so long, they would have had no complaint. Thus employing people on single fixed-term contracts did not offend against either the Directive or the Regulations.

The Supreme Court thus allowed the appeal of the Secretary of State on the principal issue.  The Court also agreed with the Tribunals and the Court of Appeal that teachers employed by the Secretary of State in European schools abroad were covered by the Fixed-term Regulations.  The Court thus held that it was objectively justified to employ the teachers on the current fixed term contracts and accordingly they were not converted into permanent contracts by the operation of regulation 8 of the Fixed-term Regulations.