Duncombe v Secretary of State for Children, Schools and Families 2009 EWCA Civ 1355

Mr Duncombe was a teacher employed to work in a European school in Germany. He and a colleague worked on successive fixed term contracts which were expressly governed by English law. Eventually their employment ended in accordance with the 9 year rule which limited their employment at a European school to 9 years unless a further year was agreed in exceptional circumstances.

Mr Duncombe brought claims against the Department for Children, Schools and Families for wrongful and unfair dismissal. These claims could not succeed unless the Fixed Term Employee Regulations operated to convert his employment from a series of fixed term contracts to a permanent employment under Regulation 8. The EAT allowed that and the Court of Appeal allowed his unfair dismissal claim to proceed. Although he had permanent employment, he was working outside Great Britain and would normally have been precluded from bringing such a claim. However the court accepted his argument that his contract was governed by English law. It followed that his fixed term contract had been converted into a permanent contract and the remedy of unfair dismissal was open to him where English law governed his employment contract.

Key point: Overseas employees may not be excluded from exercising unfair dismissal rights in Great Britain and care needs to be taken in drafting the jurisdiction clauses in temporary, permanent and fixed term contracts.

Territorial jurisdiction for employees on garden leave

YKK Europe Ltd v Heneghan UKEAT/0271/09

Mr Heneghan commenced employment in 1998 with YKK. In 2004 he relocated to Germany. He worked all the time in Germany. In 2007 he was informed that he was no longer required and he would have to cease working by the end of the year and return to the UK. He could not return to the UK immediately because his property was rented out. He was eventually repatriated in May 2008 and remained on a period of unofficial garden leave. He was finally terminated in June 2008, negotiations over a Compromise Agreement having failed.

He brought a claim for breach of contract and unfair dismissal. The Tribunal decided that it had jurisdiction to hear an unfair dismissal claim on the basis that Mr Heneghan was either working in the UK at the time of his dismissal or else he should be regarded as an expatriate employee. YKK appealed the decision which appeal was successful. Although he was not actually working at the time of his dismissal the correct approach was to identify the category in which he fell under the House of Lords’ decision of Serco Ltd v Lawson. The Tribunal had failed to do so and the case was remitted.