Difficult choices

The Department for Children, Schools and Family (DCSF) must decide whether to breach its European or domestic obligations after an Employment Appeal Tribunal (EAT) ruling for the employment of teachers at European schools.

In Secretary of State for Children, Schools and Families v Fletcher the EAT considered the applicability of the Fixed Term Employees (Prevention of Less Favourable) Treatment Regulations 2002 (FTER) to teachers employed in the European schools pursuant to staff regulations.

It was found that the existence of a nine-year fixed term rule in the staff regulations was not capable of constituting objective justification under the Fixed-term Work Directive 1999/70/EC, where the underlying rule itself was found not to be objectively justified.

Sian Reeves, pupil barrister at 1 Temple Gardens, says: “As the rejection of the factual justifications for the nine-year rule was not appealed, it is likely that the department’s appeal will proceed on the basis that the EAT erred in rejecting the primacy of its obligations under the staff regulations over those arising under the Directive and FTER.”

She continues: “It is difficult, however, to see how the appeal can succeed in light of the Vienna Convention and other international authority as to the primacy of Community Acts such as Directives over earlier incompatible legislation.”

Reeves says that the refusal of the European Schools’ Board of Governors to suspend the nine-year rule leaves the DCSF with a difficult decision to make.

“It is unlikely that the EAT decision will cause the other 27 board members to shift from that position leaving the DCSF stuck between a rock and a very hard place as to which obligations to breach. The appeal suggests that the DCSF want the Court of Appeal to decide for it,” she adds.