Duncombe and Others v Secretary of State for Children, Schools and Families: CA 14 Dec 2009

The court considered the workings of fixed term employment contracts under which the claimants taught in Europe. The Secretary of State argued that the contracts validly limited the claimants’ employment to nine years. The claimants said the 2002 Regulations operated to change the contracts into permanent ones. The decision was ‘whether the employment contracts between the teachers and the Department fall within the scope of the Directive and the Fixed-Term Regulations; and if they do, whether the Nine Year Rule is justified on objective grounds; and, if it is not justified, whether the Schools Convention and the Staff Regulations regime override or displace the Directive and the Fixed-Term Regulations.’
Held: The contracts were covered by the 2002 regulations, and therefore the questions was as to whether there was any objective justification for the use of fixed terms. The defendant impermissibly sought to resurrect points it had lost and not pursued.
References: [2009] EWCA Civ 1355, Times 07-Jan-2010, [2010] IRLR 331, [2010] ICR 815, [2010] 2 CMLR 14
Links: Bailii
Judges: Mummery LJ, Maurice Kay LJ, Jacob LJ
Statutes: Employment Rights Act 1996, The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, Fixed-Term EC Directive 1999/70/EC of 28 June 1999, Employment Rights Act 2002 45
Jurisdiction: England and Wales
This case cites:

  • Appeal from – Duncombe and others v Department for Education and Skills EAT (Bailii, [2008] UKEAT 0433 – 07 – 2404)
    EAT Jurisdictional Points – Working outside the jurisdiction
    Fixed Term Regulations
    Extra-territorial jurisdiction. Teachers working abroad. Breach of contract claim within ET jurisdiction. Whether . .
  • Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL (Bailii, [2006] UKHL 3, [2006] 1 ICR 250, Times 27-Jan-06, [2006] 1 All ER 823, [2006] IRLR 289)
    Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
  • Cited – Bleuse v MBT Transport Ltd and Another EAT ([2008] IRLR 264, [2008] ICR 488, Bailii, [2007] UKEAT 0339 – 07 – 2112)
    EAT Working Time Regulations
    Unfair Dismissal – Exclusions including worker/jurisdiction
    The claimant, a lorry driver, worked mainly in Austria and Germany, but had a contract of employment with a . .
  • Cited – Adeneler and Others v Ellinikos Organismos Galaktos ECJ (C-212/04, Bailii, [2006] EUECJ C-212/04, [2006] ECR I-6057, [2007] All ER (EC) 82, [2006] IRLR 716, [2006] 3 CMLR 30)
    A Directive was belatedly transposed into national law and after the date by which it ought to have been implemented. The question arose whether the obligation to interpret national law in accordance with the Directive existed from the date the . .

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Last Update: 12 July 2020; scu-Ref: scu.384061