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Archive for July 29th, 2011

The Supreme Court has held that employees working or based abroad can only claim unfair dismissal in the employment tribunal in exceptional circumstances.

This case concerned two teachers who were employed by the Department for Children, Schools and Families to work in European Schools.

They were employed under a succession of fixed-term contracts. Their contracts were expressed to be governed by English law and provided for the English courts to have exclusive jurisdiction.

The Board of Governors of the European Schools had set a ‘nine year rule’, under which British teachers at European Schools were compelled to leave their posts after nine years. The Department considered that it was bound by this rule and, therefore, refused to renew the teachers’ contracts.

On expiry of their contracts the teachers brought claims of unfair dismissal and breach of contract, as well as claims for pay in lieu of notice.

The Supreme Court had, on an earlier occasion, accepted that it had jurisdiction to consider the matter and had held that the ‘nine year rule’ provided an objective justification for the fixed-term contracts not evolving into permanent contracts.

It now had to consider whether the teachers could bring claims for unfair dismissal, breach of contract and for pay in lieu of notice through the English legal system. It decided that they could.

The Supreme Court said that the right to bring proceedings in Great Britain by employees who are working or based abroad will only apply in exceptional circumstances.  In essence, the employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law.

The teachers’ case was considered to be an exceptional case due to a special combination of factors. Those factors were as follows:

•    their employer was not only based in Britain but was the UK Government;
•    their employment contracts were governed by English law;
•    they were employed in ‘international enclaves’ and, therefore, had no particular connection with the countries in which they were situated. They did not pay local taxes and were only in those countries because of commitments undertaken by the British Government;
•    it would be anomalous if a teacher, who was employed by the British government to work in the European School in England, were to enjoy different protection from teachers who were employed to work in the same sort of schools in other countries.

Case reference: Duncombe & Others v Secretary of State for Children, Schools and Families (No. 2)

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