Supreme Court holds that use of successive fixed-term contracts for up to 9 years for teachers in European Schools was objectively justified under the Fixed-term Employees Regulations.
In this case the Supreme Court held that a UK government department's use of successive fixed-term contracts for teachers working in European Schools was objectively justified. Therefore, the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (“the FTE Regulations”) had not operated to make the teachers' employment permanent.
Mr Fletcher and Mr Duncombe were teachers employed by the predecessor to the Department for Children, Schools and Families to work in European Schools. They worked under successive fixed-term contracts, which had English choice of law and jurisdiction provisions. Mr Fletcher's employment was due to end, and Mr Duncombe's employment did end, because of the nine-year rule. Both employees challenged the fixed term nature of their employment on the basis that it contravened the FTE Regulations.
The Supreme Court held that the use of the fixed-term contracts could readily be justified by the existence of an internationally agreed ‘nine-year’ rule determining the terms of the particular employment. The teachers were employed to do a job which could only last for nine years, and the employer had no choice but to limit the employment to this period. Lady Hale commented that “the Secretary of State could not foist those teachers on the schools for a longer period, no matter how unjustifiable...the employment tribunals of this country thought that rule to be”.
This case provides an important clarification of the relevant factors to be taken in to account when considering objective justification for the use of successive fixed-term contracts.
The Tribunal, Employment Appeal Tribunal, and the Court of Appeal had all rejected the idea that the “nine year rule” itself could be relied upon to justify the use of successive fixed-term contracts. All three had considered that the rule itself (and not just the employer’s compliance with it) had to be objectively justified.
The Supreme Court rejected this notion, holding that the ‘nine-year’ rule was “nothing to the point”. It held that it was not the rule which had to be justified but rather the use by the employer of the last fixed-term contract bringing the total period of employment to nine years. The Court held that the use of the last contract could be “readily justified” by the existence of the “nine-year” rule. Lady Hale commented that the Secretary of State in this case had no choice but to limit the employees’ employment to a fixed term of no more than nine years.
Under regulation 8 of the FTE Regulations, employees who have been continuously employed for four years or more on a series of fixed-term contracts are automatically deemed to be permanent employees, unless the continued use of fixed-term contracts can be objectively justified by the employer.
Article 29 of the Regulations for Members of the Seconded Staff of the European Schools 1996 (“the Staff Regulations”) limits to nine years the length of possible employment at a European School. The Staff Regulations envisage that employees who work the full nine years will do so under successive fixed-term contracts of two years, three years and four years.