In the recent case of Duncombe and others v Secretary of State for Children, Schools and Families, the Court of Appeal has considerably widened the scope for those working abroad to bring claims in Employment Tribunals in the UK.
The case concerned teachers who had never worked in the UK but whose contracts were expressed to be governed by English law.
They were employed under a series of fixed-term contracts subject, by regulation, to a maximum of nine years duration. After nine years their contracts were terminated. The claimants raised what the Court of Appeal called a 'cluster of employment law issues' on the territorial limits of the Employment Rights Act 1996 and the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 ('the Regulations'). The Regulations derive from the European Fixed Term Directive 1999/70/EC.
The Court of Appeal decided that the series of fixed-term contracts could not be objectively justified and so should be considered, in each case, as one contract for an indefinite term.
It followed that each claimant could bring a wrongful dismissal claim based on that contract. The fact that they were performing their English contracts outside Great Britain was irrelevant to their contractual right to claim breach of contract.
Could they also claim unfair dismissal? Despite the House of Lords decision in Lawson v Serco, the Court of Appeal decided that they could. It was necessary to allow them to do so for the effective vindication a right derived from EC law (i.e. the right not to be less favourably treated because they had been employed on a series of fixed-term contracts).
Points to note –
- Even where, as in this case, employers use a series of fixed-term contract for a reason (in this case, to allow for staff turnover, new ideas and fresh thinking), the fact that the reason exists and is applied across the board may not be enough to provide 'objective justification' for its existence so as to defend a claim brought under the Regulations.
- This case may have far-reaching effects for employees engaged to work outside the jurisdiction on contracts governed by English law. Generally, they may not bring unfair dismissal claims unless they fall within the exceptional cases set out in Lawson v Serco. However, it appears that they may now bring such claims if they are necessary for the vindication of a right under European law. Employers will need to obtain specialist advice on a case-by-case basis.