Duncombe v Secretary of State | Employment Law Advocates

When the Duncombe case was heard in the Employment Appeal Tribunal and the Court of Appeal, the dominant issue was one of territorial jurisdiction, as discussed here. However, in the recent ruling made by the Supreme Court, the Secretary of State for Children, Schools and Families succeeded on a different ground of appeal, concerning the interpretation of the Fixed Term Employees Regulations. It is unlikely that permission to appeal was refused on territorial jurisdiction, as this seemed to be a good opportunity to clarify the authority of Lawson v Serco, which has become rather messy in recent years, and so it must be assumed that a tactical decision was taken not to appeal on that point.

Therefore, this case is a wonderful illustration of the importance of selecting the strongest point and eliminating any weak points when appealing against a decision. At one level, it is possible to understand the sentiment that there is nothing to lose by running an additional point but, where the law is complex, the time taken dealing with one point is likely to eat into to the time necessary to deal with the other point. At Employment Appeal Tribunal level in this case, the Fixed Term Employee Regulations point was not taken at all, which made matters even worse when it reached the Court of Appeal because, not only did it make the point look like a secondary argument, it also had the disadvantage that it had not been taken below, which further encouraged the Court to devote very little attention to dealing with it. It was only when it reached the Supreme Court, and the decision was taken to run a streamlined case, that this ground of appeal was given the attention it warranted. Had it been given prominence sooner, it is likely that it would not have had to go to the Supreme Court at all.