New Judgment: Duncombe & Ors v Secretary of State for Children, Schools and Families  UKSC 14
30 Wednesday Mar 2011
On appeal from:  EWCA Civ 1355
Concerned the employment, by the Secretary of State for Children, Schools and Families, of teachers to work in the European Schools. The Schools’ staff regulations limited the period for which teachers could be seconded to work in those schools to a total of nine years, made up of a series of fixed term contracts. The principal question in the appeal was whether these arrangements could be objectively justified, as required by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2002/2034, reg 8.
The Supreme Court unanimously allowed the appeal, holding that it was objectively justified to employ these teachers on the current fixed term contracts and accordingly that these were not converted into permanent contracts. The teachers’ complaint is not against the three or four periods comprised in the nine year rule but against the nine year rule itself. They were complaining about the fixed-term nature of their employment rather than about the use of the successive fixed-term contracts which make it up. But that was not the target against which either the Fixed-term Directive or the 2002 Regulations were aimed. It was not the nine year rule which was required to be justified, but the use of the latest fixed-term contract bringing the total period up to nine years. That could readily be justified by the existence of the nine year rule. The Secretary of State could not foist those teachers on the schools for a longer period, no matter how unjustifiable either he or the employment tribunals of this country thought the rule to be. The teachers were not employed to do any alternative work because there was none available for them to do.