Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2246/16

 

 

 

CLAIMANT: Lyndsey Maree Wilkinson

 

 

RESPONDENTS: 1. Northern Ireland Prison Service

2. Department of Justice

 

 

 

DECISION

The unanimous decision of the tribunal is that the claims are out of time and there are no grounds on which the relevant statutory time-limits can be extended. The tribunal therefore has no jurisdiction to determine these claims and the claims are dismissed.

 

If the tribunal had such jurisdiction the claims would have been dismissed in any event. There is no prima facie case of unlawful sex discrimination since there is no evidence that a male worker with a similar length of sick leave to that taken by the claimant after her maternity leave would not similarly have received a warning. Furthermore, all the sick leave taken into account by the employer was sick leave after the conclusion of maternity leave and after the protected period.

 

The tribunal was invited to refer a question to the European Court of Justice. Even if the tribunal had jurisdiction, the tribunal would conclude that the position is sufficiently clear and that there are no grounds for any reference.

 

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Ms N Wright

Ms V J Foster

Appearances:

The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by Diamond Heron, Solicitors.

The respondents were represented by Ms A Finnegan, Barrister-at-Law, instructed by The Departmental Solicitor's Office.

 

Background

 

1. The claimant is a prison officer employed by the first-named respondent.

 

2. The claimant commenced maternity leave on 18 August 2014.

 

3. The claimant notified the first-named respondent on 8 December 2014 that she wished to terminate her maternity leave on 21 December 2014. Her first day back at work would therefore be 22 December 2014. This notice was accepted by the first-named respondent.

 

4. On 22 December 2014, on the date that she was due back at work, and after she had terminated her maternity leave, the claimant submitted a sick note stating that she was unfit for work for four weeks because of a pregnancy-related illness. This was followed by successive sick notes to cover a continuing absence.

 

5. The claimant's sick absence continued for some four months up to 20 April 2015 when the claimant commenced a phased return to work.

 

6. On 25 June 2015, the claimant received a disciplinary warning for her sick absence in accordance with the procedures of the first-named respondent. That warning was based solely on the claimant's sick absence from 22 December 2014, after she had terminated her maternity leave. She appealed against that disciplinary warning and that appeal was unsuccessful.

 

7. The claimant lodged a tribunal claim on 25 October 2016, some 16 months after the imposition of the warning.

 

8. The claimant alleges that she has been subject to an unlawful detriment relating to her taking maternity leave contrary to Article 70C of the Employment Rights (Northern Ireland) Order 1996 and Regulation 19 of the Maternity and Parental Leave (Northern Ireland) Regulations 1999. She also alleges that the respondents unlawfully discriminated against her on grounds of her gender contrary to the Sex Discrimination (Northern Ireland) Order 1976.

 

9. The parties indicated that there were several issues in this matter:-

 

"(i) Whether the claims to the industrial tribunal was made within the statutory time-limits and, if not, whether those time-limits should be extended?

 

(ii) Whether the claimant's protected period for the purposes of Article 5A of the 1976 Order ended on 21 December 2014 when the claimant had notified that her maternity leave should end. The respondents argued that it did terminate on that date; and the claimant argued that it did not. The claimant argued that the protection should continue throughout the period during which the claimant would have been entitled to OML or AML, whether or not the claimant had elected to terminate her maternity leave and to return to work early.

 

(iii) Whether the claimant's illness had been pregnancy related?

 

(iv) Whether the respondent subjected the claimant to an unlawful detriment on grounds related to her taking maternity leave contrary to Article 70C of the 1996 Order and Regulation 19 of the Maternity and Parental Leave (Northern Ireland) Regulations 1999?

 

(v) Had the claimant actually returned to work after the termination of her maternity leave for the purposes of Article 5A(3)(a)(1) of the 1976 Order? Does that require a physical return?

 

Procedure

 

10. The witness statement procedure was used in this case. Witness statements were exchanged in advance of the hearing and took the place of oral evidence-in-chief. Each witness was called to swear or affirm to tell the truth and each then adopted their previously exchanged witness statement as their entire evidence-in-chief.

 

11. The claimant gave evidence on her own behalf and was cross-examined. A Ms Jane McBratney, Head of Corporate Services, within the second-named respondent, provided a witness statement for the respondents. The claimant did not contest that witness statement although they reserved the right to make comments on it. With the consent of the parties, the witness statement of Ms McBratney was simply adopted as evidence in this matter and she was not cross-examined.

 

12. The hearing took place on 15 May 2017. The parties agreed to exchange written submissions and to lodge those submissions in the Office of the Tribunals no later than 6.00 pm on 9 June 2017. The claimant and the respondents provided written submissions and the respondents also provided written comments on the claimant's submissions. There was a submissions hearing on 19 June 2017 at 9.30 am.

 

13. The respondents agreed to provide copies of the pay-slips made out to the claimant for the entire period of maternity leave and sick leave. They also agreed to provide all the fitness for work certificates submitted by the claimant to the respondents to cover the period from 22 December 2014 up to her phased return. The respondents also agreed to provide a copy of the internal procedures relating to sick pay. All those documents were provided for the submissions hearing.

 

Relevant findings of fact

 

14. The claimant found that she was pregnant early in 2014.

 

15. She was absent from work from 1 July 2014 to 17 August 2014 with pre-eclampsia. That absence on sick leave occurred during the protected period and was not relied on, or taken into account, by the respondents in relation to the written warning which was issued at a later date.

 

16. On 14 August 2014 she applied for maternity leave.

 

17. That application indicated that maternity leave was intended to commence on 18 August 2014 and that she expected the child to be born during the week beginning 15 September 2014. She stated that she intended to return to work in the Prison Service following her maternity leave.

 

18. That application was made on a printed proforma. That included a printed declaration that if she wished to end her maternity leave and to return to work earlier than her scheduled return date she should give at least eight weeks' notice.

 

19. On 14 August 2014 the first-named respondent wrote to the claimant indicating that she was eligible to take up to 52 weeks' maternity leave comprising 26 weeks' ordinary maternity leave ('OML') and 26 weeks' additional material leave ('AML'). It indicated that her maternity leave would start on 18 August 2014 and terminate on 17 June 2015 (39 weeks). She was therefore due to return to work on 18 June 2015.

 

20. The letter again reminded the claimant that she had to give eight weeks' notice of any earlier return:-

 

"You may choose to return to work before the end of the full period of maternity leave provided you advise me, in writing, at least eight weeks in advance of the date you wish to return, otherwise your return may be delayed."

 

This is consistent with the first-named respondent's policy on maternity leave which states:-

 

"2.5 However, if you wish to return to work before the end of your full entitlement to maternity leave, you must give HR Connect at least eight weeks' notice ... ."

 

21. The letter indicated that she was entitled to receive contractual maternity pay (paid at her full contractual rate of pay) for the first 18 weeks of her maternity leave from 18 August 2014 to 21 December 2014. Following that date she was entitled to receive statutory maternity pay for a further period of 21 weeks at the rate of £138.18 per week. The remaining 13 weeks of maternity leave would be unpaid.

 

22. On 8 December 2014 the claimant wrote a note to the first-named respondent indicating:-

 

"My maternity leave will end 21 ^st December 2014. Thanks."

 

The 21 December 2014 was the last day in which the claimant would have received full pay before her pay dropped to statutory maternity pay.

 

23. On the same date the first-named respondent wrote back to the claimant to indicate that her request had been granted and that her maternity leave would finish on 21 December 2014. No reference was made by either the claimant or the respondents to the normal requirement of eight weeks' notice of a proposed early return. That requirement seems to have been waived. The letter of 14 August 2014 from the first-named respondent had, in any event, put the requirement in a half-hearted manner; it did not say that an early return would not be permitted if eight weeks' notice had not been given. It said that a return to work may (not would) be delayed.

 

24. On 22 December 2014 (the day on which she was due to return to work) the claimant submitted a fitness for work certificate of the same date which indicated that she was unfit for work for four weeks because of:-

 

"Non healing caesarean section wound."

 

25. It is clear that if the claimant had not terminated her OML and had not submitted that fitness for work certificate (sick note) she could have continued with her OML for a further eight weeks although that would have been paid at the statutory maternity pay rate. She could then have taken 26 weeks of AML, 13 weeks of which would have been paid at the statutory maternity pay rate and 13 weeks of which would have been unpaid.

 

Instead, the claimant was paid, and accepted, full pay in the form of contractual sick pay.

 

26. Although the claimant had not been aware of it at the time, if she had not elected to end her maternity leave early on 21 December 2016 and had simply provided a sick note on 22 December 2014, when her maternity leave would have been continuing, the maternity leave would automatically have ended and contractual sick absence (at full sick pay) would have commenced.

 

27. The claimant stated that 'in or around the first or second week of November' 2014 she had experienced difficulties with her caesarean section wound. She had attended the Larne Treatment Centre on a daily basis for her treatment. She stated that she had asked on each day how long her inability to work would continue and she had been told on each occasion that it would clear up soon. She stated that right up until the day she was due back to work, ie 22 December 2014, she had been told that it would be fine and would clear up soon.

 

28. The claimant when she put in her notification to end her maternity leave on 8 December 2014 had already been experiencing difficulties with her caesarean section wound for one month. It seems unlikely that she had actually intended to return to work on 22 December 2014 as indicated. She states that the practice had been that if she had put in a sick note she would have gone on sick pay anyway. That would have applied even if she had herself terminated maternity leave. However, even when she had still been on maternity leave she had not put in a sick note, ie in first or second week of November when her difficulties first arose. It seems more likely than not that her purpose in terminating her maternity leave on 21 December 2014 in then putting in her sick note and had been to maximise salary payment and to continue to receive full salary rather than to drop down to the statutory maternity pay leave. She had not been aware in December 2014 that she had not actually needed to terminate maternity leave herself before submitting a sick note to receive contractual sick pay.

 

29. It is clear from Paragraph 6 of her witness statement that there had been continual efforts to deal with the caesarean section wound including the use of gauze and honey, a vacuum assisted treatment and padding. It therefore seems highly unlikely that she actually thought, at any stage, that she would be back to work on 22 December 2014.

 

30. She could produce no real explanation for the timing of the notification to terminate maternity leave and for the submission of the sick note. On the balance of probabilities, the tribunal concludes that it had not been the case that she had actually thought until 22 December 2014 that she would return to work. She would have been aware on 8 December 2014 and subsequently that she was medically unfit to work with no immediate prospect of recovery.

 

The claimant remained on sick leave until 20 April 2015 when she commenced a phased return. She therefore had been on sick leave for approximately four months after the termination of maternity leave.

 

31. On 17 February 2015 she had her first meeting with a Carol Gilmore, employed by the first-named respondent. It was indicated that her caesarean section wound was still not healing. That was confirmed during an OHS appointment on 25 February 2015.

 

32. She had attended a further meeting on 14 April 2015 for a sickness review which had been chaired by Ms Marcella Phillips.

 

33. She attended a further meeting on 20 May 2015 for the consideration of a disciplinary warning. She did not bring a Prison Officers' Association representative with her because she thought there had been no chance of such a warning being imposed. However, it is clear that she had had unrestricted access to the Prison Officer's Association and therefore easy access to advice.

 

34. The claimant attended a further meeting on 25 June 2015 with Ms Phillips to review her phased return and to see how she was progressing. She was handed a written warning.

 

35. With the assistance of the Prison Officers' Association the claimant appealed against that warning. That appeal was heard on 8 July 2015. The appeal was unsuccessful and the warning remained in place. The warning lasted for two years and is effective up 24 June 2017.

 

36. At some stage (unspecified) in the summer of 2016 the claimant had been told by her mother-in-law that the written warning had been an act of discrimination because her sick absence had been caused by a pregnancy-related illness. She states that this was the first time she had heard this. However it is clear that she must already have formed the view that her sick absence should have been treated differently; she had not brought a POA representative to the meeting on 20 May 2015 for precisely that reason. She felt that there had been no risk of a warning. The claimant had made the point at that meeting that her absences, whether because of the caesarean wound or because of surgery, had been caused by ' surgery from the birth of her baby'.

 

37. On 11 August 2016 the claimant submitted a grievance about the sick absence warning under the internal uniform procedure. She alleged that the imposition of this warning had been an act of unlawful discrimination.

 

38. On 12 August 2016 the claimant was informed by the first-named respondent that she could not use the grievance procedure to appeal against a sick absence warning. She was told that she had already exercised the right of appeal against that warning and that the internal process had been exhausted.

 

39. The claimant lodged the present tribunal proceedings in the Office of the Tribunals on 25 October 2016; some 16 months after the imposition of the sick absence warning on 25 June 2015.

 

Relevant law

 

40. Article 70C of the 1996 Order provides:-

 

"( 1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.

 

(2) A prescribed reason is one which is prescribed by regulations made by the Department and which relates to —

 

(a) pregnancy, childbirth or maternity,

 

(b) ordinary, compulsory or additional maternity leave,

 

(ba) ordinary or additional adoption leave,

 

(c) parental leave,

 

(ca) ordinary or additional paternity leave, or

 

(d) time off under Article 85A."

 

41. Article 71 of the 1996 Order provides that an employee may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 70C. It further provides:-

 

" (3) An industrial tribunal shall not consider a complaint under this Article unless it is presented —

 

(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

 

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

 

42. The 1999 Regulations provide, in material part:-

 

"19(1) An employee is entitled under Article 70C( 1) of the 1996 Order not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer done for any of the reasons specified in paragraph (2).

 

(2) The reasons referred to in paragraph (1) are that the employee —

 

...

 

(b) has given birth to a child;

 

...

 

(d) took, sought to take or availed herself of the benefits of, ordinary maternity leave;

 

...

 

(3) For the purposes of paragraph (2)( d), a woman avails herself of the benefits of ordinary maternity leave if, during her ordinary maternity leave period, she avails herself of the benefits of any of the terms and conditions of her employment preserved by Article 103 of the 1996 Order during that period."

 

Clearly the decision to issue the warning was not directly caused by the birth and it seems clear that during the relevant period which triggered the sick absence warning the claimant had not sought to avail of ordinary maternity leave for the purposes of Sub-paragraph (d).

 

43. Article 5A of the Sex Discrimination (Northern Ireland) Order 1976 provides:-

 

"(1) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if —

 

(a) at a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably; or

 

(b) on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably."

 

44. Article 5A further provides:-

 

"( 3) For the purposes of paragraph (1) —

 

(a) in relation to a woman a protected period begins each time she becomes pregnant, and the protected period associated with any particular pregnancy of hers ends in accordance with the following rules —

 

...

 

 

(ii) if she is entitled to ordinary and additional maternity leave in connection with the pregnancy, the protected period ends at the end of her period of additional maternity leave connected with the pregnancy or, if earlier, when she returns to work after the end of her pregnancy."

 

[Tribunal emphasis]

 

45. Article 76 of the 1976 Order provides for a three month time-limit within which a claim must be lodged from the alleged act of unlawful discrimination. It provides that time-limit may be extended if the tribunal considers it just and equitable to do so.

Decision

 

Time-limitation

 

46. The claim in this matter was originally a claim under the 1976 Order of alleged sex discrimination. That has been expanded in the course of case-management to include a claim under the 1996 Order of unlawful detriment for a prescribed reason.

 

47. It is clear that these claims have been made outside the statutory time-limits. Both the 1976 Order and the 1996 Order provide for a three month statutory time-limit. It is also clear that the alleged act of unlawful discrimination or unlawful detriment was the imposition of the sick absence warning on 25 June 2015 and that time runs from that date. In any event, the claimant accepted that this was the position. The claim to the tribunal lodged on 25 October 2016 was therefore lodged some 16 months after the alleged act of discrimination or the alleged act of detriment and had therefore been lodged some 13 months after the expiry of the statutory time-limits.

 

48. The 1976 Order provides for the possible extension of the three month statutory time-limit on ' just and equitable' grounds. The 1996 Order provides for the possible extension of the statutory time-limit on ' reasonably practicable' grounds. Consideration of this issue in the present case will therefore require consideration of both statutory tests. These tests are significantly different.

 

49. The ' reasonably practicable' test has been the subject of extensive consideration. The Court of Appeal (GB) in Palmer v Southend-on-Sea Borough Council [1984] ICR 372 stated that a tribunal should ask itself whether it had been ' reasonably feasible' to present the claim in time. Mr Justice Underhill set out the principles at Paragraph 5 of Northamptonshire County Council v Entwhistle [2010] IRLR 740 where he stated:-

 

"There has been a great deal of authority about the effect of the 'not reasonably practicable' test and in particular about its application in circumstances where a claimant has consulted skilled advisers who have failed to give him proper advice about the applicable time-limits _____ I will not attempt a full analysis of what those cases decide; the points relevant to the argument in the present case can be summarised as follows:-

 

(1) Section 111(2)(b) should be given a liberal construction in favour of the employee. This was first established in Dedman. There have been some changes to the legislation since but this principle has remained : see, most recently, Paragraph 20 in the judgment of Lord Philips MR in Williams-Ryan at Page 465.

 

(2) In accordance with that approach it has consistently been held to be not reasonably practicable for an employee to present a claim within the primary time-limit if he was, reasonably, in ignorance of that time-limit. This was first clearly established in the decision of the Court of Appeal in the Walls case but see most recently Paragraph 21 of Lord Philips' judgment in Williams-Ryan and in particular the passage from the judgment of Brandon LJ in Walls there quoted at Page 565.

 

(3) In Dedman, the Court of Appeal appeared to hold categorically that an applicant could not claim to be in reasonable ignorance of the time-limit if he had consulted a skilled adviser, even if that adviser had failed to advise him correctly. Lord Denning MR said this at Page 381:-

 

'But what is the position if he goes to skilled advisers and they make a mistake? The English Court has taken the view that the man must abide by their mistake. There was a case where a man was dismissed and went to his trade association for advice. They acted on his behalf. They calculated the four weeks wrongly and posted the complaint two or three days late. It held that it was practicable for it to have been posted in time. He was not entitled to the benefit of the escape clause; see Hammond v Haigh Castle & Co Ltd [1973] IRLR 91. I think that was right. If a man engages skilled advisers to act for him, and they mistake the time-limit and present it too late, he is out. His remedy is against them. Summing up, I would suggest that in every case the tribunal should enquire into the circumstances and ask themselves whether the man or his advisers were at fault in allowing the four weeks to pass by without presenting the complaint. If he was not at fault, nor his advisers, so that he had just cause or excuse for not presenting his complaint within the four weeks then it was not practicable for him to present it within that time. A Court has then a discretion to allow it to be presented out of time if it thinks it is right to do so, but if he was at fault, or his advisers were at fault in allowing the four weeks to slip by, he must take the consequences. By exercising reasonable diligence the complaint could and should have been presented in time.'

Lord Denning made a similar point in his judgement in the Walls case at Page 501. In his judgment in the same case, Brandon LJ, after referring to the fact that a complainant could in principle seek to rely on ignorance or mistake about the time-limit, said this at Page 502:-

 

'Either state of mind will further not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all the circumstances have made or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.'

 

(4) In Riley, Stephenson LJ cautioned against Dedman as laying down a rule of law, observing that every case must depend upon its own facts; see Page 106. In Sen, Sir Thomas Bingham MR went further and questioned the rationale of the rule itself; see Paragraph 16 at Pages 335 - 336.

 

(5) However in Williams-Ryan, Lord Philips reviewed the relevant authorities in some detail with a view to identifying whether it was a correct proposition of law that as he put it in Paragraph 24:-

 

'If an employee takes advice about his or her rights and was given incorrect or inadequate advice, the employee cannot rely upon that fact to excuse a failure to make a complaint to the Employment Tribunal in due time. The fault on the part of the adviser is attributed to the employee.'

 

He concluded squarely at Paragraph 31:-

 

'What proposition of law is established by these authorities? The passage I quote from Lord Denning's judgment in Dedman was part of the ratio. There the employee had retained a solicitor to act for him and failed to meet the time-limit because of the solicitor's negligence. In such circumstances it was clear that the adviser's fault would defeat any attempt to argue that it was not reasonably practicable to make a timely complaint to an Employment Tribunal.'

 

The passage from Dedman there referred to is part of the passage which I have set out at (3) above. I think it was clear that Lord Philips was intending to confirm that what he elsewhere called 'the principle in Dedman' is a proposition of law and, to that extent, to decline to endorse Stephenson LJ's observations in Riley, which he referred to as having been orbiter or Sir Thomas Bingham's doubts in Sen.

 

(6) Subject to the Dedman point, the trend of the authorities is to emphasise that the question of reasonably practicability is one of fact for the tribunal and falls to be decided by close attention to the particular circumstances of the particular case; see, for example, the judgment of May LJ in Palmer at Page 125. I should refer also to the comment by Stephenson LJ in Riley at Page 108 that:-

 

'When Judges elaborate or qualify the plain words of statute by gloss upon gloss, the meaning of the words may be changed, the intention of Parliament not carried out but defeated and injustice done instead of justice'."

 

50. The ' just and equitable' test is a wider discretion which is given to the tribunal. Again it has been extensively considered in case law. There is no presumption in favour of the extension of time and the onus is on the claimant in each case to convince the tribunal that it is just and equitable to extend time in the context of time-limits in employment cases which are intended to apply strictly; see, eg  Robertson v Bexley Community Centre [2003] IRLR 434. The tribunal should also take into account the length of the proposed extension, the reasons for any delay, whether the claimant had been aware of his or her rights of claim or of the time-limit, the conduct of the claimant and the employer, and any potential prejudice to either party. Tribunals have also been encouraged to consider the checklist factors listed in the Limitation Act 1980 - see British Coal Corporation v Keeble [1997] IRLR 336.

 

That Act required the court to consider the prejudice which each party would suffer as a result of the decision to be made and also to have regard to all the circumstances of the case and, in particular, to:-

 

"(a) the length of and the reasons for the delay;

 

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

 

(c) the extent to which the party sued had co-operated with any requests for information;

 

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;

 

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action."

 

51. Turning to the facts of the present case, the claimant knew of the content and of the effect of the sick absence warning at all times from 25 June 2015. She knew, in particular, that it had been based on her absence from work for some four months and that that absence, at least in significant part, had been due to a pregnancy-related illness; an unhealed caesarean wound.

 

52. The claimant had, at all times, been aggrieved by the imposition of the sick absence warning from 25 June 2015 and had indeed sought to appeal that warning with the assistance of her trade union. She could have sought advice from other sources, such as the Equality Commission, the Belfast Law Centre or indeed from her own solicitor, but chose not to do so at that time. She knew that she had received a warning which had been based, at least in part, on a pregnancy related illness.

 

The trade union can be regarded as a skilled adviser in these matters. It did not advise the claimant that she could lodge a claim of unlawful discrimination in this tribunal and did not advise her of the statutory time-limit.

 

53. Even when the claimant became aware of a potential claim of sex discrimination, at some point in the summer of 2016, she still did not promptly lodge a complaint to the tribunal. She sought first, on 11 August, to lodge a detailed grievance under the uniform procedure operated by the first-named respondent. That attempted grievance was promptly refused on 12 August. The claimant still did not lodge a tribunal claim for a further two months and has not put forward any convincing explanation for that further delay.

 

54. Applying the ' reasonably practicable' test for the purposes of the 1996 Order it is clear beyond argument that the claim is out of time and equally clear that the time-limit should not be extended in this case. It had been feasible at all times after the imposition of the sick absence warning on 25 June 2015 for the claimant to have lodged her claim of unlawful detriment in the Office of the Tribunals. She failed to do so and appears to have pursued no further enquiries beyond those initially directed at her trade union. If the POA had failed to advise her adequately, that fault, applying the principle in Dedman, is regarded as hers.

 

55. As a matter of ' practicability' for the purposes of the 1996 Order, it had always been practicable or feasible for the claimant to have lodged her claim within the statutory time-limit of three months. Even if that had not been so, and if she had in some way been impeded or prevented from observing that time-limit, she could have lodged her claim at any stage thereafter. Time-limits are meant to have an effect and to ensure finality in litigation. There is nothing in the facts of this case which would justify an extension of 13 months under the ' reasonably practicable' test.

 

56. In relation to the claim under the 1976 Order, it is again clear beyond argument that the claim is significantly out of time. It is also clear that time should not be extended in this matter. The claimant has sought a significant extension despite having made minimal efforts at best to pursue her claim with the assistance of her trade union and despite having sought no alternative advice before she approached her current solicitor some time after her discussion with her mother-in-law. Even when the claimant ultimately was made aware at some point in the summer of 2016 of a potential claim of unlawful sex discrimination, she still did not lodge a claim promptly in the tribunal. She pursued first of all an internal grievance under the uniform procedure. Even when that was rejected she did not lodge a claim for a further two months in the Office of the Tribunals.

 

57. It is clear that significant prejudice would be caused to the claimant if time is not extended and it is equally clear that the cogency of the evidence in this case has not been affected by the delay. However, while each of these factors must be considered as part of a balancing exercise, neither factor can be determinative. It cannot be the case that a claimant is automatically entitled to delay beyond the statutory time-limit simply because of potential prejudice if time is not extended or simply because the evidence has not been affected by the delay.

 

58. This case involves a significant delay; 16 months from the impugned act and 13 months from the expiry of the time-limit. The claimant had been aware at all times of an issue concerning pregnancy related sick leave. She had argued as far back as 20 May 2015 that this meant that no warning would be given and that she did not need a POA representative. No convincing reason has been advanced for this significant delay in pursing the claim.

 

59. The claimant had been aware from the start of the core elements of her claim and no issues arose in this case about responses to requests for information. It cannot be argued that any of the facts giving rise to the present claim had been concealed from the claimant.

 

60. The claimant states that she was told on some unspecified date in the summer of 2016 that she had suffered ' discrimination'. That label adds nothing of significance. She had already been aware, at least from 20 May 2015, of the elements of her claim. However even after 12 August 2016 she delayed further for several weeks and the claim was not lodged until 25 October 2016. No convincing reason has been advanced for this significant delay.

 

61. The tribunal therefore concludes that time should not be extended under the ' just and equitable' test for the purposes of the 1976 Order.

 

62. The tribunal therefore has no jurisdiction to deal with the claims and they must be dismissed.

 

63. If the tribunal is wrong in this matter its unanimous decision is that the claim would fail in any event. Some initial matters need to be considered.

 

64. The respondents argued that the illnesses which contributed to the relevant four month absence were not pregnancy-related. The fact that the caesarean wound did not heal properly or promptly was argued to be an intervening act which removed the necessary connection with pregnancy.

 

With respect this argument is mere sophistry. It cannot be rationally argued that a caesarean wound (at whatever rate it heals) is anything other than a pregnancy-related illness. Two sick notes referred to joint pains which may or may not be pregnancy-related but it is clear nevertheless that a significant part of the relevant absence which had triggered the sick absence warning had been due to the caesarean wound and that it had therefore been at least to a significant extent, pregnancy-related.

 

65. The claimant argued that the protected period of maternity leave had not properly ended because the requisite eight week notice under the first-named respondent's internal procedures had not been given. This again is mere sophistry. An internal procedure which regulates relations between an employer and an employee is of necessity flexible. There is, as an implied part of any such arrangement, the possibility of waiving or setting aside stated time-limits. In the present case the claimant clearly notified the employer, giving less than two weeks' notice, of her intention to return from maternity leave. That notification was promptly accepted by the employer. Neither the employer nor the claimant raised the issue of the requirement for eight weeks' notice and it is beyond argument that that eight weeks' notice had simply been waived. It cannot rationally be argued that because the eight weeks' notice had not been given in full that the claimant, on that basis alone, had not ended her maternity leave and that therefore her protected period as defined by domestic law.

 

66. It should also be remembered that the internal procedure which set out the requirement for the eight weeks' notice did not make it a mandatory requirement without any possibility of flexibility. Indeed it specifically stated that the consequence of not complying with the eight weeks' notice might simply delay matters; not that it would have delayed a return or that it would have prevented a return.

 

67. The claimant had also been given and had accepted without prevarication occupational sick pay at the full salary rate during the four months' absence. It does not sit easily for the claimant to argue that she was still on maternity leave but to take advantage of which she had believed to be the situation, ie that her pay had been about to drop on 22 December 2014. It seems clear on the balance of probabilities that, to avoid that position, she had terminated her protected period of maternity leave with effect from 21 December 2014.

 

68. In any event, no evidence was produced to the tribunal to establish any direct link between the sick absence which led to the warning and any of the prescribed reasons in the 1999 Regulations. Similarly, no evidence whatsoever was produced to the tribunal, to establish even a prima facie case that a male worker who had been absent from work on occupational sick pay for four months would not have received a similar written warning. On the balance of probabilities it seems absolutely clear that the sick warning was triggered or caused, or on the ground of, the absence on sick leave for the four months outside the protected period and for no other reason.

 

69. It is also clear that the protected period for the purposes of the Directive and for the purposes of domestic legislation terminated on 21 December 2014 at the instigation of the claimant. On the balance of probabilities she did so purely for perceived financial benefit, in that she believed that she would have otherwise have seen her pay reduced to the statutory maternity pay rate. Having made that election for financial advantage and having received the benefit of occupational sick pay at the full rate for some four months, the claimant cannot properly argue that in some way her protected period of maternity leave subsisted in some notional or inchoate form for either the period of remaining for OML or for the additional period of AML.

 

70. The claimant's representative argued that the relevant case law dealt only with cases where the protected period of maternity leave had run its course and where it had expired naturally. He argued that in keeping with the purpose of the Directive, there should still be a protected period which would last for the period of maternity leave that would, but for the claimant's own choice, have been available to the claimant.

 

71. However the Directive 92/85/EC makes it plain that it is for the domestic state to determine the length of the protected period and the 1976 Order states specifically that the protected period lasts for the period of ordinary maternity leave and additional maternity leave unless the employee returns to work earlier.

 

72. That return to work does not require a physical return to the work premises. It signifies simply an end of the particular contractual relationship of maternity leave. The fact that an employee moves seamlessly onto sick leave does not alter that fact. The claimant's normal (non-maternity leave) contractual relationship had resumed.

 

73. Therefore the unanimous decision of the tribunal is that the protected period in the present case expired on 21 December 2014. The only absences taken into account for the purposes of the written sick absence warning were the absences which commenced after that date from 22 December 2014.

 

74. The tribunal agrees with the decision of the Employment Tribunal in Lyons v DWP Job Centre Plus [UKEAT/0348/13] where the EAT, after analysing the relevant case law, concluded that:-

 

"When a pregnancy-related illness arises during pregnancy and maternity leave and persists after the maternity leave period, an employer is permitted to take into account periods of absence due to that illness, after the end of maternity, in computing any period of absence justifying dismissal, in the same way that a man's absences for illness are taken into account."

 

75. The claimant's protected period had therefore ended on 21 December 2014. In any event, the alleged detriment had not related to a prescribed reason for the purposes of the 1996 Order and the 1999 Regulations. The claim of unlawful detriment would therefore have failed even if the tribunal had jurisdiction to determine it.

 

76. The claim of unlawful gender discrimination would also have failed. There was no evidence that a male worker, absent for four months, would have been treated more leniently. No absence during the protected period had been taken into account by the respondents.

 

77. Turning to the issues listed in Paragraph 9 above, the answers are:-

 

(i) The claims were made outside the time-limits and time is not extended.

 

(ii) The protected period ended on 21 December 2014 and did not persist thereafter.

 

(iii) The claimant's illness had been, at least to a significant extent, pregnancy related.

 

(iv) No for the reasons outlined above.

 

(v) The claimant had returned to work for the purposes of Article 5A(3)(a)(i). A physical return is not required.

 

Summary

 

78. The claims are out of time and time is not extended. Even if the tribunal had jurisdiction, the claims would have been dismissed.

 

79. The claimant invited the tribunal to consider referring a question to the European Court of Justice, asking whether the protected period of maternity leave in this case remained in existence after 21 December 2014. For the reasons outlined above, the tribunal concludes that even if it had jurisdiction to determine the claims, the law is clear and that no such reference would be required.

 

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing: 15 May 2017, at Belfast

 

 

Date decision recorded in register and issued to parties: