Duncombe, Fletcher and Others v Secretary of State for Children, Schools and Families
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,Lord Justice Maurice Kay,Lord Justice Jacob |
| Judgment Date | 14 December 2009 |
| Neutral Citation | [2009] EWCA Civ 1355 |
| Docket Number | Case No: A2/2008/1078, 1657 & 2508 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2009 |
[2009] EWCA Civ 1355
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Hhj Peter Clark (1078 & 1657)
Hhj Mcmullen QC (2508)
Before: Lord Justice Mummery
Lord Justice Maurice Kay
and
Lord Justice Jacob
Case No: A2/2008/1078, 1657 & 2508
UKEAT/0095/08/RN & UKEAT/0433/07/dm
MR NIGEL GIFFIN QC and MR SIMON HENTHORN Solicitor Advocate (instructed by Reynolds Porter Chamberlain LLP) for the Appellants
MR JONATHAN CROW QC, MR BRUCE CARR QC and MS MAYA LESTER (instructed by the Treasury Solicitor) for the Respondent
Hearing dates: 1 st, 2 nd & 3 rd April 2009
I. Introduction
These three connected appeals, which are all about teachers' fixed-term employment contracts, were ordered to be heard together. They arise from two employment tribunal (ET) decisions and three Employment Appeal Tribunal (EAT) decisions. The tribunal decisions were in test cases for unfair dismissal and wrongful dismissal and for declarations as to permanent status brought by British teachers against their former employer, the Secretary of State for Children, Schools and Families (the Department, for short). The claims are consequent on the Department's dismissal of the teachers on the termination of their employment contracts. That occurred at the end of a series of contracts for fixed terms of varying lengths, totalling at least nine years in most cases. The Department had seconded the claimants to teaching posts in the network of European Schools established in this country and in other countries in the European Community (EC). The teaching posts were subject to a maximum of 9 years duration by virtue of regulations in force at the Schools.
The cases raise some unprecedented and, to my mind, difficult points of law. The legal setting is (a) domestic contract law and employment protection legislation (the Employment Rights Act 1996); (b) the EC Directive on Fixed-Term Contracts in 1999 and its transposition into domestic law by the Fixed-Term Regulations in 2002; and (c) international treaties between the European Communities and Member States establishing the European Schools, and the regulations made under them governing teaching posts in those schools.
The appellants, Mr JR Fletcher and Mr KP Duncombe, are two of the claimant teachers. They were employed by the Department to work in the European Schools, Mr Fletcher being seconded to a teaching post at a European School in this country and Mr Duncombe to a teaching post at a European School in Germany. In the ET and in the EAT the facts of their cases were treated as raising legal issues relating to both their employment rights and to those of other similarly-placed claimants. Save for Mr Duncombe's unfair dismissal claim, the cumulative effect of the current tribunal decisions is a rejection of the Department's grounds for denying legal liability to the claimants.
The Department's hard line on all of the claims is that the period of secondment to the European Schools was, and is, validly limited to a maximum of nine years. That feature was dictated by “the Nine Year Rule” embodied in the Schools' internal regulations. The Department's case is that the Nine Year Rule is objectively justified under the EC Directive on Fixed-Term contracts (if applicable); that the employment contracts terminated by effluxion of time at the end of the period allowed under the Nine Year Rule; that the teachers concerned were then excluded from further service in the European Schools; and that the teachers were not entitled to make against the Department any statutory claim under the 1996 Act for unfair dismissal or any contract claim for wrongful dismissal.
If the Department's case is correct, the Nine Year Rule, which the Department did not make (though it is reflected in the teachers' employment contracts, which it did make) means that British teachers at European Schools are compelled to leave their posts without legal redress for their dismissal at the end of the permitted maximum period. That is so, even where there is no suggestion that the post held is redundant, or that there is anything unsatisfactory about the conduct or capability of the teacher. The Department's position is that its hands are tied, reducing it to a helpless and blameless state in this matter. It is caught in the middle of a situation, which is not of its own making: on one side are the aggrieved teachers; on the other side are the Board of Governors of the European Schools and their inflexibility on the application of the Nine Year Rule. That Board, not the Department, made the Nine Year Rule restricting the length of employment. It is the application of that rule in the Schools that is the root of the teachers' grievances about loss of employment without fair reason or just redress. The Department denies legal responsibility for the claimants' predicament.
If the court is inclined to reject its primary submissions, the Department says that the court should consider making a reference to the Court of Justice under Article 234 of the Treaty on questions of interpretation of EC law arising out of the 1999 Directive.
In the cases of those teachers seconded to work in the European Schools overseas the Department has some other arguments for saying that the teachers are not entitled under English domestic law to remedies for either wrongful dismissal or for unfair dismissal from extra-territorial employment. The Department rests much of this part of its case on the principles laid down by the House of Lords in Lawson v. Serco [2006] ICR 250 (Serco.)
II. Overview of issues and tribunal proceedings
The unique aspects of the origin, status and staffing of the European Schools have created a very unusual employment law environment. The Schools were established by the EC and the Member States for the education of the children of staff working in EC institutions. The Schools form a group located in various countries in the EC, including this country. They are staffed by teachers seconded from different member states. The Schools are neither emanations of the EC itself nor of the Member States. Although the teachers seconded to them are subject to the Nine Year Rule, the seconding Member States did not make that Rule.
The dismissal of the British teachers has produced a cluster of employment law issues on the territorial limits of the 1996 Act and of the fixed-term contracts legislation; the objective justification of fixed-term contracts under legislation for the protection of workers from the abuses of successive fixed-term contracts; the impact of the international treaty governing the Schools; and the effect of the internal school regulations made under that treaty.
Out of a total of 227 such teachers 164 are potentially affected by the issues in these cases. The number is not large, but the issues, particularly those relating to employment protection for employees working abroad, potentially affect a large and growing number of workers.
The crunch question is whether, as the Department argues, the British teachers in the European Schools have only fixed-term employment contracts with an objectively justified maximum 9 years duration applied in the Schools; or whether, as the teachers claim, their employment contracts have been converted by the Fixed-Term Regulations into contracts under which they become permanent employees of the Department. Permanent employee status would, they say, entitle them either to continue working in the European Schools, or, if they are prevented from doing so, to legal redress against the Department for unfair dismissal and wrongful dismissal.
Two different legal regimes potentially govern the legal position of the teachers. The outcome of the main issue largely turns on which regime applies. That depends on the scope of each regime and, if the teachers fall within the scope of both regimes, which of them, if either, takes priority in the determination of their employment rights.
The first is the Schools regime. It consists of the specific legal instruments creating the constitution and government of the European Schools: the Schools Convention 1994 made between the Member States of the EC and the Communities themselves and the Staff Regulations made by the Board of Governors of the European Schools in 1996 defining the terms on which staff are seconded to the Schools. The Staff Regulations include the Nine Year Rule at the core of the controversy. The Board of Governors is unwilling to modify or suspend it. The Department says that it is powerless to change it, though that is not fully accepted by the teachers.
The second is the EC Fixed-Term Contracts regime. The claimants' case is that it is of general application to employment in the EC. It consists of the Fixed-Term EC Directive 1999/70/EC of 28 June 1999 and the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 made under section 45 of the Employment Rights Act 2002 (not, it should be noted, under section 2 of the European Communities Act 1972). The main target of the 1999 Directive and the implementing Regulations was prevention of the abuse by employers of successive fixed-term contracts.
Broadly stated, the principal issue is whether the employment contracts between the teachers and the Department fall within the scope of the Directive and the Fixed-Term Regulations; and if they do, whether the Nine Year Rule is...
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