The Supreme Court handed down a further judgment in the case of Duncombe, Fletcher and Others v Secretary of State for Children, Schools and Families [2011] UKSC 14 on 29 March 2011. This case concerned the question of whether the Staff Regulations of European Schools under which teachers were seconded under successive fixed-term contracts could be objectively justified under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 SI 2002/2034 (‘the Regulations’), the measure chosen by the UK to implement Council Directive 1999/70/EC concerning the framework agreement on fixed-term work” (‘the Directive’). The effect of regulation 8 was that a successive fixed-term contract was turned into a permanent employment unless the use of such a contract can be objectively justified.

The Secretary of State for Children, Schools and Families employed teachers to work in European Schools established to provide a distinctively European education principally for the children of officials and employees of the European Communities. The Staff Regulations, made by the Board of Governors pursuant to the Convention defining the Statute of the European Schools, limited the period for which teachers could be seconded to work in those schools to a total of nine years (“the nine year rule”), made up of an initial probationary period of two years, and a further period of three years, renewable for a further four years.

The appellants were teachers at European School employed under a series of fixed term contracts to reflect the nine year rule in the UK and Germany. When their contracts came to end they brought proceedings, claiming that they were permanent employees by virtue of regulation 8. The Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal had all held that the use of the successive fixed-term contracts was not objectively justified.

Lady Hale, giving the leading judgment of the Court, held that the respondent was objectively justified in employing the appellants on the current fixed term contracts, and accordingly that those had not been converted into permanent contracts by the operation of regulation 8 of the Regulations.

The respondent had argued that it had to employ teachers for the purpose of seconding them to the European Schools and the schools would only take them on the basis of the nine year rule, this having been made clear to the teachers when they were recruited. That in itself was objective justification for employing the teachers on successive or renewable contracts which mirrored the periods in the rule.

The appellants’ complaint was about the fixed-term nature of their employment rather than about the use of the successive fixed-term contracts which make it up. But that was not the target against which either the Directive or the Regulations were aimed, and thus employing people on this basis fell foul of neither. The Directive was directed instead at discrimination against workers on fixed-term contracts and abuse of successive fixed-term contracts in what was in reality an indefinite employment. It had not been suggested that the terms and conditions on which the teachers were employed during their nine year terms were less favourable than those of comparable teachers on indefinite contracts.

It was not the nine year rule which required to be justified, but the use of the latest fixed-term contract bringing the total period up to nine years, and that can readily be justified by the existence of the nine year rule. The teachers were employed to do a particular job which could only last for nine years. The Secretary of State could not foist those teachers on the schools for a longer period, no matter how unjustifiable either he or the employment tribunals of this country thought the rule to be. The teachers were not employed to do any alternative work because there was none available for them to do. There was no inconsistency between the Staff Regulations and the Directive as the former dealt with the duration of secondment, and not with the duration of employment.

The appeal was thus allowed.