The Court of Appeal has ruled (Duncombe, Fletcher and others v Secretary of State for Children, Schools and Families) that staff regulations instituted by the board of governors of the ‘European Schools’, that restricted the period of employment of teachers to nine years, were unlawful as the rule could not be objectively justified as necessary under the EC Fixed-Term Workers Directive and the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, which implement the Directive into UK law.
The teachers were seconded by the Department for Children, Schools and Families (DCSF) to work in one of the European Schools, 13 official educational establishments set up to provide education for the children of staff working in EC institutions. They worked under a series of fixed-term contracts which were expressed to be governed by English law. After nine years, the contracts were duly terminated. The teachers brought claims for pay in lieu of notice, breach of contract and unfair dismissal. The DCSF denied any liability because it was not responsible for enforcing the nine-year rule.
The Court of Appeal found that the Fixed-Term Employees Regulations did operate to convert the teachers’ fixed-term contracts to permanent contracts of employment and there was no objective justification for the imposition of the nine-year limit.
The Court went on to consider whether in the light of the House of Lords’ ruling in the 2006 case of Lawson v Serco, which dealt with the right of overseas workers to bring a claim of unfair dismissal, the Employment Tribunal (ET) had jurisdiction to consider the claims of wrongful dismissal and unfair dismissal.
The Court found that the teachers could bring breach of contract claims even though their contracts of employment were being performed abroad. Furthermore, even though Lawson v Serco found that employees who work abroad can only bring an unfair dismissal claim to the ET in certain, exceptional circumstances, employees must be permitted to seek a remedy for breach of a right that is directly enforceable under EU law – i.e. the right not to be less favourably treated because they had been employed under a succession of fixed-term contracts – even if the employee has never worked in Great Britain.
The law pertaining to the rights of employees working abroad can be very complicated. We can provide specialist advice on your individual circumstances.