Duncombe and ors v Secretary of State for Children, Schools and Families
Generally, employees cannot bring unfair dismissal claims if they live and work outside Great Britain. In Duncombe and ors v Secretary of State for Children, Schools and Families the Court of Appeal said these restrictions must be modified if employees would otherwise be deprived of a right derived from European law.
Basic facts
Mr Duncombe was seconded by the Department for Children, Schools and Families to work under a succession of fixed-term contracts in a European School in Germany. He claimed unfair dismissal and wrongful dismissal when his last contract expired after nine years and his employment was terminated.
Although he did not have any entitlement to notice pay under his last fixed term contract, regulation 8(2) of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 states that if an employee has been continuously employed for more than four years under a fixed term contract, they are deemed to be a permanent employee. If Mr Duncombe could rely on this provision he would be entitled to notice pay and could bring a claim for wrongful dismissal.
The Department argued that, as Mr Duncombe lived and worked abroad, the regulations did not apply to him because he could not satisfy the jurisdiction test set out by the House of Lords in the 2006 case of Lawson v Serco. Mr Duncombe argued that this was overriden by clause 15 of his contract which stated that it was governed by English law and that the English courts had “exclusive jurisdiction in all matters relating to it”.
Tribunal and EAT decisions
The tribunal dismissed the wrongful dismissal claim as it relied on regulation 8 (2). Because of the decision in Lawson v Serco, it said that Mr Duncombe could not rely on the regulations as he lived and worked abroad.
Mr Duncombe appealed against this decision, raising a new argument based on the EAT decision in Bleuse v MBT Transport and anor. In that case it was held that courts should depart from the test in Lawson v Serco when directly effective EU rights existed.
The EAT agreed and held that the tribunal did have jurisdiction to hear a complaint made under the regulations. The EAT contended that the regulations needed to be construed in accordance with the European Directive, which they were intended to implement, even if this meant departing from the test set out in Lawson v Serco.
Court of Appeal decision
The Court of Appeal agreed and gave two reasons why the regulations applied and the wrongful dismissal claim should not be dismissed. Firstly it stated that the principles derived from Lawson v Serco do not limit the territorial scope of the application of the regulations in contract cases. The regulations apply to all relevant contracts governed by English law, irrespective of where the employee works and performs the contract.
In addition the Court of Appeal agreed with the EAT and the decision in Bleuse v MBT Transport and anor, that when the UK made its choice in enacting the regulations, the relevant parts of the directive became directly effective and acted to modify any principle that may have been previously established in Lawson v Serco.
Finally the Court of Appeal held that the principle established in Bleuse v MBT and anor also applied to the case of unfair dismissal as well as to the case of wrongful dismissal. Although the right not to be unfairly dismissed was not derived from EC law, it was necessary to have it so that Mr Duncombe could enforce his right to indefinite employment (which was derived from EC law) and not suffer the abuse of successive fixed term contracts without objective justification.