Duncombe v Secretary of State for Children, Schools and Families
|Duncombe v Secretary of State for Children, Schools and Families|
|Citation(s)|| UKSC 36,  ICR 495,  IRLR 498|
|Conflict of laws, employment|
The case was joined with Secretary of State for Children, Schools and Families v Fletcher.
Duncombe and other teachers were employed by the government to teach in various schools in the EU under the Statute of the European Schools. They taught children of officials and employees of the EU. They were claiming unfair dismissal because there was no objective justification for using fixed term contracts, and they contended they should be regarded as permanent under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 reg 8. One employee, F, had worked in such a school in the UK, another in Germany. The contracts were limited to nine years, or exceptionally ten years under the Regulations for Members of the Seconded Staff of the European Schools 1996. The Secretary of State claimed it was not for the court of one member state to question the regulations.
The Court of Appeal held successive fixed-term contracts for work in European schools was not objectively justified.
Lady Hale and Lord Rodger decided that use of successive fixed term contracts was objectively justified under the Regulations. The cross appeal concerned whether UK labour law applied so that there could be an unfair dismissal complaint under ERA 1996 s 94, on which judgment was reserved. Lord Mance, Lord Collins and Lord Clarke agreed. Lord Rodger passed away in the mean time.
|“||16. This depends upon a combination of factors. First, as a sine qua non, their employer was based in Britain; and not just based here but the Government of the United Kingdom. This is the closest connection with Great Britain that any employer can have, for it cannot be based anywhere else. 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. Although this factor is not mentioned in Lawson v Serco, it must be relevant to the expectation of each party as to the protection which the employees would enjoy. The law of unfair dismissal does not form part of the contractual terms and conditions of employment, but it was devised by Parliament in order to fill a well-known gap in the protection offered by the common law to those whose contracts of employment were ended. 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. They did not pay local taxes. The teachers were there because of commitments undertaken by the British government; the husbands, in Wallis and Grocott, were there because of commitments undertaken by the British government; and the wives were there because the British government thought it beneficial to its own undertaking to maximise the employment opportunities of their husbands' dependants. 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; just as it would be anomalous if wives employed to work for the British government precisely because their husbands were so employed, and sacked because their husbands ceased to be so employed, would be denied the protection which their husbands would have enjoyed.||”|
-  EWCA Civ 1355
-  UKSC 14
-  UKSC 36