In Duncombe and ors v Secretary of State for Children, School and Families (No.2) the Supreme Court decided that teachers employed by the Secretary of State to work in European Schools overseas fell within the protection of the Employment Rights Act 1996 and could therefore claim unfiar dismissal.
The Court ruled that the teachers comprised one of the ‘exceptional’ categories of overseas workers acknowledged by the House of Lords in Lawson v Serco Ltd as having a sufficiently strong connection with Great Britain to be entitled to claim unfair dismissal.
In this, the teachers’ case was akin to that of the employees in Ministry of Defence v Wallis and anor – a case where the Court of Appeal correctly accepted that employment within an international enclave was so closely connected to Great Britain as to entitle the employees to the protection of unfair dismissal under S.94(1) ERA.
The claimant was employed by DCSF under a series of fixed-term contracts to work as a teacher in European Schools in Germany. When the last of those contracts expired he he brought claims in a UK employment tribunal. He argued that the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 SI 2002/2034 applied to convert his employment relationship into a permanent one, from which he had been unfairly dismissed under S.94 ERA.
The question of whether the Regulations and the ERA could apply arose, given that D worked wholly outside Great Britain, and the case eventually reached the Supreme Court. With regard to the Regulations, the Court held in a separate judgment delivered earlier this year that they would not have the effect of granting D permanent employment since repeated fixed-term employment was objectively justified in the particular circumstances. However, on the question raised by the cross-appeal as to whether the employment tribunal had jurisdiction to entertain D’s claim of unfair dismissal, the Court postponed judgment until a later date.
Lady Hale, giving the judgment of the Court, noted that the question was whether D fell within the exceptional circumstances identified by the House of Lords in Lawson v Serco Ltd where an employee working abroad for a British employer is covered by British employment law. She noted that the principle appears to be that the employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law. In the Court’s view, that was indeed the case here.
Lady Hale noted several reasons for this conclusion. First, D’s employer was not just based in Britain but was the Government of the United Kingdom, which made it the closest connection with Great Britain that any employer can have. Secondly, D’s contract was governed by English law, which must be relevant to the parties’ expectation as to the protection that employees will enjoy. Although the law of unfair dismissal does not form part of the contractual terms of employment, it was devised by Parliament in order to fill a well-known gap in the common law. Thirdly, D was employed in an international enclave, having no particular connection with the country in which he happened to be situated and governed by international agreements between the participating states. He was there because of commitments entered into by the British Government. Fourthly, it would be anomalous if a teacher who happened to be employed by the British Government to work in the European School in England were to enjoy different protection from the teachers who happened to be employed to work in the same sort of school in other countries. In conclusion, Lady Hale noted that this was a ‘very special combination of factors’ and that to admit the case as another example of the principle laid down in Lawson v Serco Ltd would scarcely extend those exceptional cases very far or offend against the sovereignty and equality of nations. The case would therefore return to the employment tribunal for determination.
Case report IDS Brief