Employment

first_img Lawson v Serco Ltd [2006] 1 All ER 823 considered; Ministry of Defence v Wallis [2011] All ER (D) 97 (Mar) considered. Decision of Court of Appeal [2010] 4 All ER 335 Reversed. Duncombe and others v Secretary of State for Children, Schools and Families: Supreme Court (Lords Rodger, Mance, Collins, Clarke and Lady Hale): 15 July 2011 European community – contract The instant case related to the unusual employment status of teachers employed by the defendant secretary of state for children, schools and families to work in the European Schools. Those schools were set up to provide a distinctively European education principally for the children of officials and employees of the European communities. The main issue in the appeal was whether the terms of that employment fell foul of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2002/2034 (the Regulations). On 30 March 2011, the Supreme Court handed down judgment allowing the appeal of the secretary of state on that issue ([2011] All ER (D) 332 (Mar)). The Supreme Court reserved judgment in the cross-appeal of the claimant teachers. The issue in the cross appeal was whether the claimants’ employment was covered by the protection against unfair dismissal conferred by s 94(1) of the Employment Rights Act 1996 (the Act). Consideration was given to Lawson v Serco Ltd ([2006] 1 All ER 823) (Lawson). The cross appeal would be allowed. It was common ground that the basic principle was laid down by the House of Lords in Lawson which gave specific examples of people employed by British employers to work outside Great Britain who would be protected from unfair dismissal. Section 94(1) of the Act contained no geographical limitation. Parliament had repealed the previous exclusion of employees who ordinarily worked outside Great Britain in 1999 and had put nothing in its place. However, it was agreed that s 94(1) of the Act could not apply to all employment anywhere in the world. However, established authority did form another example of an exceptional case where the employment had such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it was right to conclude that parliament had to have intended that employees should enjoy protection from unfair dismissal. That depended on a combination of factors. First, their employer was based in Britain; and not only based there but the government of the United Kingdom. Secondly, they were employed under contracts governed by English law and the international institutions for which they worked. Thirdly, they were employed in international enclaves, having no particular connection with the countries in which they happened to be situated and governed by international agreements between participating states. 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 was to enjoy different protection from the teachers who happened to be employed to work in the same sort of school in other countries (see [5], [16] of the judgment). In the instant case, it was common ground that the claimants’ employment did not fall within either of the specific examples given in Lawson. However, the employment had such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it was right to conclude that parliament had intended that the employees should enjoy protection from unfair dismissal. To admit the instant case as another example of the principle laid down in Lawson was scarcely to extend those exceptional cases very far or to offend against the sovereignty and equality of nations (see [3], [16]-[17] of the judgment). Nigel Giffin QC, Katherine Eddy and Simon Henthorn (instructed by Reynolds Porter Chamberlin LLP) for the claimants. Jonathan Crow QC and Maya Lester (instructed by the Treasury Solicitor) for the Secretary of State.last_img