The Court of Appeal dealt with some complicated issues of European law in Duncombe v Department for Children, Schools and Families. It was not a good week for the Department, which also intervened unsuccessfully in JFS. Mr. Duncombe was employed to teach at a European School in Germany but was dismissed when his fixed-term contract came to an end after nine years, contrary to the Fixed-Term Workers Directive. He did not bring a claim in Germany, because he knew that the Department would rely upon state immunity to defeat the claim, and so he had no choice but to bring his claim in the UK.

He was allowed to pursue wrongful dismissal by the Employment Appeal Tribunal, following the earlier decision by President Elias in Bleuse v MBT Transport. It was held that a claim under the Working Time Directive, concerning work carried out in Austria, could be pursued in an Employment Tribunal because the Directive is directly effective and, otherwise, there would be no effective remedy for a breach by a UK-based employer. In the appeal, Lord Justice Mummery notes that Bleuse is not necessary for the wrongful dismissal claim. The contract was agreed to be subject to the jurisdiction of the English courts and, although the conversion of a contract from a fixed-term one to an permanent one depends on the operation of European law, it operates upon the contract itself and so no jurisdictional issue will arise.

However, the unfair dismissal claim is a different matter. Jurisdiction is governed by the case of Lawson v Serco which depends, subject to certain very limited exceptions, on the employment being based in the UK. None of the exceptions apply to this particular case. While the Fixed-Term Workers Directive is found by the Court of Appeal to be directly effective, there is not a legally-binding right in European law to be protected against unfair dismissal itself. Nevertheless, Lord Justice Mummery concludes that it is necessary to extend Lawson v Serco so that there is an effective remedy for a breach of the Directive.

It is difficult to argue with this result on the facts but the decision can hardly be said to clarify the law. The problem is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal where the UK government is the employer and can rely upon state immunity. Doubtless the Department will appeal and this will allow the point to be explored.