Secretary of State for Children Schools and Families v Fletcher

The law says that employees on fixed term contracts become permanent after four years, unless their employer can justify extending them. In Secretary of State for Children Schools and Families v Fletcher, the Employment Appeal Tribunal (EAT) said that a legal obligation limiting employment to nine years was not objectively justified.

Basic facts

Mr Fletcher had been employed at a European school in Culham, Oxfordshire since 1988 under a series of fixed term contracts. In 2007 the school employed him on what it described as a one year fixed term contract, which was due to run out at the end of August 2008.

The school was administered according to the terms of a 1994 international treaty to which EC member states and European Communities were parties and which required schools to adopt a set of regulations governing the terms and conditions of staff. Article 29 stated that staff could not be seconded to a school for more than nine years.

Regulation 8(2) of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (FTER) 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.

Employers can only extend contracts for more than four years if they can objectively justify their decision. To do so, they have to show that the use of a further fixed term contract is aimed at achieving a legitimate objective, is necessary to achieve that objective and is an appropriate way to achieve it

Mr Fletcher argued that he had become a permanent employee under the FTER. The government argued that they could justify extending his fixed term contract on the basis of the 1994 international treaty (reflected in Article 29 of the staff regulations).

Tribunal decision

The tribunal granted Mr Fletcher a declaration that he was a permanent employee, rejecting the employer’s defence of justification based on Article 29.
The employer appealed.

EAT decision

The EAT agreed with the tribunal. It held that the European directive on fixed term work (transposed into domestic law as the FTER) had to prevail over anything in the 1994 treaty insofar as the earlier legislation was incompatible.

The EAT said that it was too simplistic to argue that just because the board of the European Schools was made up of representatives of each of the member states (which in turn constituted the EU), that anything done by that board must have legislative effect.

The issue then arose as to whether the government could objectively justify the rule. The EAT said that “since there is nothing peculiar about the length of employment of a teacher by the Respondent at Culham there is no reason why he should not have the benefit of the FTER” and hence there was nothing to objectively justify the continued use of fixed-term contracts.

The EAT therefore accepted Mr Fletcher’s argument that it was illogical to say that a ground which could not be justified could be justified because 27 members had previously agreed to it.

The EAT gave the government permission to appeal its decision.