Nine year contract is objectively justified

(a) dismiss the secretary of state’s appeal and allow the cross-appeal of the claimant, Kevin Peter Duncombe, from decisions of the Employment Appeal Tribunal (Judge Peter Clark, sitting alone) on December 12, 2007, and (Judge Peter Clark, Mr K. Edmonton and Mr M. Worthington) on April 24, 2008, allowing Mr Duncombe’s appeal in part against a decision of the employment tribunal promulgated on June 18, 2007; and (b) dismiss the secretary of state’s appeal from the dismissal by the Employment Appeal Tribunal (Judge McMullen, QC, Mr I. Ezekiel and Mr P. Smith) ([2009] ICR 102) of his appeal against a decision of the employment tribunal promulgated on November 16, 2007, making a declaration in favour of the claimant, John Roger Fletcher.

The court reserved judgment on a further issue.

Mr Jonathan Crow, QC and Ms Maya Lester for the secretary of state; Mr Nigel Giffin, QC, Ms Katherine Eddy and Mr Simon Henthorn, solicitor, for the claimants.

LADY HALE said that the European Schools were set up to provide a distinctively European education principally for the children of officials and employees of the European Communities.

The staff regulations limited the period for which teachers could be seconded to work in those schools to a total of nine years. That was made up of an initial probationary period of two years, and a further period of three years, which was renewable for a further four years.

The principal question was whether those arrangements could be objectively justified as required by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (SI 2002 No 2034) which was how the United Kingdom had chosen to implement Council Directive 1999/70/EC (OJ 1999 L175/43), the Fixed-term Directive. The effect of regulation 8 was that, after the employee had been continuously employed for four years, a successive fixed-term contract was turned into permanent employment unless the use of such a contract could be objectively justified.

The nine-year rule was an attempt to strike a balance between the need for expertise and continuity in the European Schools and the desire for cross-fertilisation between those schools and the national schools of the member states.

Whether the supposed benefits of the rule outweighed the disruption caused to the lives of the teachers and to the education of their pupils was controversial. It presented a particular difficulty for the United Kingdom.

In most member states school teachers were permanent employees of the state. At the end of their secondment they returned to work in their home countries. In the UK, however, school teachers were employed either by the local education authority or by the governing body of the school where they worked.

Hence the secretary of state employed teachers specifically to work in the European Schools and on fixed-term contracts which corresponded to the secondment periods laid down in the staff regulations.

That, of course, presented problems for the teachers, who would have to look for new employment when their terms of employment ended. It also presented a problem for the secretary of state, who had no other work for those teachers once their secondment was over.

The Fixed-term Directive was not directed against fixed-term contracts as such but at abuse arising from using them to disguise an indefinite employment as a series of fixed-term contracts. The teachers’ complaint was not against the three or four-year periods comprised in the nine-year rule but against the nine-year rule itself. But that was not the target against which either the Fixed-term Directive or the 2002 Regulations was aimed. Had the secretary of state chosen to offer them all nine-year terms and taken the risk that the schools would not have kept them for so long, they would have had no complaint. Employing people on single fixed-term contracts did not offend against either the Directive or the Regulations.

The teachers were employed to do a particular job which could only last for nine years. 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.

Consequently, it was objectively justified for the teachers to be employed on their current fixed-term contracts.

Lord Rodger, Lord Mance, Lord Collins and Lord Clarke agreed.

Solicitors: Treasury Solicitor; Reynolds Porter Chamberlain LLP