Duncombe v Secretary of State for Children, Schools and Families (No 2)
| Jurisdiction | England & Wales |
| Judge | LADY HALE,LORD MANCE,Lord Rodger,LORD COLLINS,LORD CLARKE |
| Judgment Date | 15 July 2011 |
| Neutral Citation | [2011] UKSC 36,[2011] UKSC 14 |
| Date | 15 July 2011 |
| Court | Supreme Court |
and others
[2011] UKSC 14
Lord Rodger
Lady Hale
Lord Mance
Lord Collins
Lord Clarke
Appellant
Jonathan Crow QC
Maya Lester
(Instructed by Treasury Solicitors)
Respondents
Nigel Giffin QC
Katherine Eddy
Simon Henthorn
(Instructed by Reynolds Porter Chamberlain LLP)
LADY HALE (with whom Lord Rodger agrees)
We are 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 principal question before us 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 concluded by ETUC, UNICE and CEEP ('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.
Should the answer to the principal question be 'no', two subsidiary issues arise in the case of teachers who are employed to work in schools outside the United Kingdom. The first is whether the Fixed-term Regulations apply to them. In other words, do they form part of the contractual arrangements between the parties? This may raise questions of European law which might have to be referred to the European Court of Justice. The second is whether the statutory protection against unfair dismissal, given to people employed in Great Britain, applies to them. Without such protection, the teachers would be limited to their contractual rights. If the answer to the principal question is 'yes', however, these questions do not arise.
The Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal have all held that the use of successive fixed-term contracts for these teachers is 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 have held that the Fixed-term Regulations do apply. However, this might have been something of a pyrrhic victory, because 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 would have 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, nevertheless, 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 appeals against the decision of the Court of Appeal, reported at [2010] ICR 815, on all save the Lawson v Serco issue and the teachers cross-appeal on that issue.
The background
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 Board of Governors, established under the Convention, is made up of a representative of the European Commission, a representative of each Member State, a staff representative, a parent representative and a representative of the EU Patent Office. 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 is what has come to be referred to as 'the nine year rule'.
The nine year rule is an attempt to strike a balance between the need for expertise and continuity in the European Schools and the desire for cross-fertilisation between those schools and the national schools of the Member States; to put it another way, to prevent the European Schools becoming an educational ghetto, isolated from the mainstream of ordinary education. Whether the supposed benefits of the rule outweigh the disruption caused to the lives of the teachers and to the education of their pupils is controversial. The staff committee has for a long time been trying to persuade the Governors to think again but so far without success.
The United Kingdom government has also supported a review of the rule, which presents a particular difficulty for the United Kingdom because of the way in which teachers are employed in this country. Most of the teachers in the European Schools are not employed by the schools themselves, but are employed as teachers by the Member States and seconded to work in the European Schools. In most of the Member States, school teachers are permanent employees of the state. At the end of their secondment they return to work in their home countries. In the United Kingdom, however, school teachers are employed either by the local education authority or by the governing body of the school where they work. They are not employed by central government. Hence the Secretary of State employs teachers specifically to work in the European Schools and on fixed-term contracts which correspond to the secondment periods laid down in the Staff Regulations. This of course presents problems for the teachers, who will have to look for new employment when their terms of employment end. It also presents a problem for the Secretary of State, who has no other work for these teachers once their secondment to the European Schools is over.
The Directive and the Regulations
It is important to understand that the Fixed-term Directive is not directed against fixed-term contracts as such. It has two more specific aims, set out in recital (14):
"The signatory parties … have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination, and to establish a framework to prevent abuse arising from the use of successive fixed term employment contracts or relationships."
Those two purposes are spelled out in clause 1 of the annexed Framework Agreement. Clause 4 goes on to deal with the 'principle of non-discrimination' and clause 5 deals with 'measures to prevent abuse':
"1. To prevent abuse arising from the use of successive fixed term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:
(a) objective reasons justifying the renewal of such contracts or relationships;
(b) the maximum total duration of successive fixed-term employment contracts or relationships;
(c) the number of renewals of such contracts or relationships."
The preamble and general considerations in the Framework Agreement recognise that "contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers" and also that "they contribute to the quality of life of the workers concerned and improve performance". But they also recognise that "fixed term employment contracts respond, in certain circumstances, to the needs of both employers and workers" and that they "are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers". But the substantive provisions of the Framework Agreement do not attempt to define the circumstances in which fixed term employment is acceptable. Instead they concentrate on preventing or limiting the abuse of successive fixed term contracts, the abuse being to disguise what is effectively an indefinite employment as a series of fixed term contracts, thus potentially avoiding the benefits and protections available in indefinite employment.
When implementing clause 5 of the Framework Agreement, the United Kingdom chose a mixture of options (a) and (b). Regulation 8 of the Fixed-term Regulations deals with "Successive fixed-term contracts":
"(1) This regulation applies where –
(a) an employee is employed under a contract purporting to be a fixed-term contract, and
(b) the contract mentioned in sub-paragraph (a) has previously been renewed, or the...
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