At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (P)
MR J R CROSBY
MR E HAMMOND OBE
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal by Mrs G Hill against Greenham Trading Ltd. The purpose of the Preliminary Hearing is to decide whether the appeal served by Mrs Hill dated 31 July 1995, reveals an arguable error of law in the decision of the Industrial Tribunal, held at London (North) on 16 June 1995. The unanimous decision of the Industrial Tribunal was that Mrs Hill had not complied with Section 47(1) of the Employment Protection Act 1978. She was therefore barred from relying on Section 56 of the same Act and from bringing a claim for unfair dismissal, arising from her attempting to return to work.
On the Preliminary Hearing this afternoon, there has been no attendance by Mrs Hill or representation of her. A Skeleton Argument was submitted on her behalf by the Hounslow Law Centre on 27 October 1995. A telephone call was made to this Tribunal this morning by a Mr Coppinger of the Hounslow Law Centre to say that he would rely on the written submissions already sent in. There has therefore been no attendance by him to advance Mrs Hill's case.
In order to decide whether there is an arguable legal error, it is necessary to look at what the Industrial Tribunal decided. The dispute for their decision arose from a claim made by Mrs Hill of constructive unfair dismissal and sex discrimination, in relation to her employment as a senior secretary with the Respondent company. She claimed that she had been employed by the company in the Sales department as a Senior Secretary. In October 1993 she discovered that the company were advertising her job on a permanent basis in the local press. She was shocked and distressed to discover this. At that time she was 5 months pregnant. She wrote to the company expressing her unhappiness about what she had discovered on 27 October. The company wrote back on 8 November expressing surprise at her concern and stating that upon her return to work, after maternity leave, a suitable position would be found for her. She commenced her maternity leave on 24 December 1993. There was a meeting on 27 July 1994 with the Respondent company. Arrangements for her to return to work were discussed. She received a letter dated 4 August 1994, which informed her she would not be returning to her old job but would be employed, when she did return, in the company's Purchasing department. She responded that that arrangement was unacceptable. That position was not her chosen career path. A further letter was sent to her on 15 August stating that on 30 August she would take up a post in the Purchasing department.
On the basis of those allegations she claimed constructive dismissal. The effective date of dismissal was 30 August 1994. A claim was also made for sex discrimination. The claim was resisted by Greenham Trading Ltd. In their Notice of Appearance dated 20 October 1994, their position was that she had not been dismissed. She failed to return to work following maternity leave. They referred to a history of some sickness prior to her maternity leave. That, together with her maternity leave, necessitated the company filling her post. They referred to the letter of 8 November outlining the situation. They said her employment was that of a Secretary. They had no such post as a Senior Secretary. They referred to the correspondence between them and Mrs Hill between November and August 1994.
On the basis of those facts, the company alleged that she had no case. She failed to return to work on the notified date. She lost her right to return. That, in outline, is the dispute that the Tribunal had to decide. The Tribunal referred to the claims in the proceedings and to the preliminary point which they were asked to decide at the hearing on 16 June 1995. That point was whether she had lost her right to return to work after maternity leave, as she had failed to give written notice of the date on which she intended to return to work, as required to do under Section 47(1) of the 1978 Act. The Tribunal referred to the dates of her employment which started with the Taylor Woodrow Group in May 1978 and to the post of Secretary to the Sales Director of Greenham Trading Ltd., from 14 August 1989. They found that she was absent from work from 23 August 1993 due to illness arising from pregnancy and did not return to work prior to maternity leave, which commenced on 24 December 1993. They found that the company had advertised her post on 13 October, but it discussed the situation with her beforehand. They referred to the letter of 27 October 1993 in which she wrote registering her concern and confirming she would be returning to work after maternity leave. The company explained in a reply that it had been forced to appoint to the post, but a suitable post would be found for her in due course. She applied for statutory maternity pay on 18 November. She gave the last date which she intended to work as 24 December and the expected date of confinement as 23 February 1994. She confirmed that she intended to return to work. On 26 November the Director wrote to her to confirm that a suitable position would be found, though not necessarily with the same Director as before. Her child was born. The Director wrote to her on 1 March advising her of her right to return and, if she wished to return, she should confirm this in writing indicating the date when she wished to return. On 14 March she confirmed her intention to return and said she would let him know that date in due course. At the end of July she had a meeting with the Director to discuss her return. On 4 August the Director wrote to her to confirm that the Respondent wanted her to resume work on 30 August, but for a Purchasing Director. The same conditions of employment would apply. On 9 August she responded and asked to work for the Sales Director. She received a reply and then she presented her application complaining of constructive unfair dismissal and sex discrimination.
The Tribunal referred to the rival contentions on behalf of the company and by Mr Coppinger of the Hounslow Law Centre on behalf of Mrs Hill. The conclusions of the Tribunal are stated in paragraph 6 as follows:
"The Applicant has no right to complain of any dismissal in the conventional sense defined by Section 55 since Section 55 does not apply to her case. Only if she can show that she was dismissed otherwise than in the course of exercising her right to return, can she bring a case of ordinary unfair dismissal. It is clear therefore that she cannot bring her claim for unfair dismissal under Section 56 and that there has never existed an obligation on the Respondent to take her back. There can therefore be no breach of that obligation."...
The Tribunal then dealt with the claim of constructive dismissal under Section 55 and said this:
"... In so doing she must identify and allege a breach of a fundamental term of the contract of employment which was subsisting and which repudiation she accepted within a reasonable time. However that breach cannot include any allegation in connection with a failure to take her back to reinstate her as there was no obligation upon the Respondent so to do. It has been said that it is a question of fact and of common sense in each case bearing in mind that the statute envisages that dismissal occurring within the course of the Applicant's attempting to return to work are to be decided under Section 56."...
The Tribunal referred to the submissions on behalf of Mrs Hill based on the E.A.T. decision in Hilton International Hotels (UK) Ltd v Kaissi [1994] IRLR 240, a case of ordinary unfair dismissal. The Tribunal's comment was that in the Kaissi case the applicant was not attempting to return to work. She was on sick leave at the time and not attempting to return to work, whereas in the present case she is claiming that she was not allowed to come back to her job. That falls within Section 56. The Tribunal made certain comments about the way in which that part of the case had been put and stated finally that, having considered the submissions to parties, they had reached the conclusion that her claim should be dismissed.
In considering whether there is an arguable point of law on the appeal, we have taken account of the Skeleton Argument submitted by the Hounslow Law Centre. That puts the case quite simply as an error of law on the part of the Tribunal, in finding that Mrs Hill was barred from bringing any claim for ordinary unfair dismissal: and an argument that the Tribunal were perverse in finding that she was not entitled to bring a claim for ordinary unfair dismissal. The Skeleton Argument refers to the facts, concentrating on the alleged breach of the Contract of Employment in October 1993 while she was on pregnancy related sick leave. That refers to the advertisement placed by the Respondent company for her post at that time. They referred to the fact that she did not return to work prior to commencing maternity leave, but remained absent from work on sick leave. She eventually accepted the Respondent's repudiatory breach and resigned and did not return from maternity leave.
Mrs Hill maintains that the company's actions prior to her maternity leave, namely the action of advertising her post, had the effect of terminating her contract of employment and that she was entitled to claim ordinary unfair dismissal. It was a fundamental breach of her contract for the company to advertise her post in October 1993. They relied on Bashir v Brillo Manufacturing Co [1979] IRLR 296 as authority for the proposition that, while she was taking time off sick, that did not run against her. The company had repudiated the contract. She had not affirmed the variation. On 30 August in the following year, she resigned and effected the dismissal. They repeated reliance on the case of Hilton International Hotels (UK) Ltd v Kaissi for the proposition that her contract subsisted while she was absent on maternity leave.
We have considered those arguments. The flaw in them, in our view, is that her case on constructive dismissal in the form of the advertisement for her post in October 1993, fails to appreciate that a constructive dismissal cannot be relied upon if the alleged repudiation of contract by the employer is not accepted by the employee within a reasonable time of the breach. The way is that breach occurred in October 1993; she eventually accepted that repudiatory breach and effectively resigned in the Summer of the following year. That factual situation would not give rise to a claim for constructive dismissal. There was no acceptance of any repudiatory breach by her within a reasonable time of that breach allegedly taking place. In those circumstances we can see no error of law of the kind which is pinpointed in the Skeleton Argument. It is not reasonably arguable. For those reasons we shall dismiss the appeal at this stage.