The Supreme Court has ruled that a government department's use of successive fixed term contracts for teachers working in European schools was objectively justified, as a rule was in place stating that the teachers could only work in the schools for a maximum period of nine years (Duncombe and others v Secretary of State for Children, Schools and Families).
The employees were teachers employed under a series of successive fixed-term contracts to work in European Schools. European law limited the duration of employment of school employees to a maximum of nine years. When their employment was terminated in accordance with those rules, the teachers sought a declaration that they were permanent employees by virtue of the Fixed-term Employees Regulations, which convert the contracts of employees who have been continuously employed for four years or more on successive fixed-term contracts into permanent employment contracts. They also brought separate claims of unfair and wrongful dismissal.
The Supreme Court overturned the Court of Appeal and found in favour of the Department for Children, Schools and Families. It held that the last fixed-term contract, which brought Mr Duncombe's employment up to the nine year maximum, could be justified on the basis that the job was only ever meant to last for nine years, and this had been made clear at the outset.
The court did not need to decide whether the Regulations applied to Mr Duncombe's overseas employment. A majority of the judges was "inclined to agree" with the Court of Appeal that they did, but said that, if the question had needed to be determined in this case, the court probably would have referred that question to the ECJ. The Supreme Court also reserved for a later date judgment on whether Mr Duncombe had a strong enough connection with Great Britain and British employment law to pass the Serco v Lawson test and proceed with his unfair dismissal claim.
