United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1038_95_3004

Appeal No. EAT/1038/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 30th April 1996

HIS HONOUR JUDGE PETER CLARK

MRS E HART

MRS M E SUNDERLAND JP

---

WENTWORTH COMPUTER HOLDINGS LTD          APPELLANTS

MRS G DEENY          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR N VINEALL

(of Counsel)

Messrs Paul Shrank & Co

Solicitors

Ruskin House

40/41 Museum Street

London WC1A 1LT

For the Respondent MR E G McCARTHY

(Solicitor)

Messrs McCarthy Robertson

Solicitors

Glenbrook House

11 Molesey Road

Surrey

KT12 4RH


 


JUDGE CLARK: This is the employer's appeal against a decision of the London (South) Industrial Tribunal sitting on 20th July 1995 that the employee, Mrs Deeny, was denied the right to return to work after maternity leave. An award of £6,516 compensation was made. There is a cross-appeal by the employee against the size of the award. Full reasons for the Industrial Tribunal's decision are dated 17th August 1995.

The material facts were not in dispute and they are these. Mrs Deeny commenced employment with the appellants in late 1989. At the time when her employment ended she held the position of Account Manager for Corporate Services Sales.

She took maternity leave in 1993 and her daughter was born on Saturday 20th November 1993, later than originally anticipated. There was some dispute as to the appropriate date for her return to work, but finally it was agreed as being 4th June 1994.

At that time her statutory right to return to work was governed by Section 47 of the Employment Protection (Consolidation) Act 1978. The amendments to the statutory maternity rights provisions affected by the Trade Union Reform and Employment Rights Act 1993 had not then come into force. Section 47(1) provided:

"(1) An employee shall exercise her right to return to work by [giving written notice to] the employer (who may be her original employer or a successor of that employer) at least [twenty-one] days before the day on which she proposes to return of her proposal to return on that day (in this section referred to as the "notified day of return")."

Accordingly under Section 47, it was for Mrs Deeny to give notice in writing of her intention to return on 4th June not later than Friday, 13th May 1994.

Aware of the need to give such notice, the respondent attempted to contact a senior member of management, Mr Dickinson, by telephone for some two weeks prior to 13th May 1994. She was unsuccessful. Her calls and messages were not returned. Finally, on 13th May she did two things. First, she posted written notification of her intention to return on 6th June 1994 to her employers. Secondly, she managed to speak on the telephone with Mr Dickinson who finally returned her calls. She informed him that she had posted notice of her intention to return on Monday, 6th June 1994 to which he replied:

"Fine! I'll get the letter on Monday and action it from there."

The statutory right to return is unbending. Failure to give written notice at least 21 days before the appropriate date is fatal to the statutory right to return.

However, that is not quite the end of the matter. Section 48(1) of the 1978 Act, as it then was, provided:

"(1) An employee who has a right both under this Act and under a contract of employment, or otherwise, to return to work, may not exercise the two rights separately but may in returning to work take advantage of whichever right is, in any particular respect, the more favourable."

The tribunal considered that provision, the facts of the case, and various authorities. Having done so it concluded that on a true construction of events the parties, by way of the telephone conversation between Mr Dickinson and the respondent, had entered into a contractual agreement, ancillary to the contract of employment, whereby her statutory rights were varied to allow for her return to work on 6th June 1994 notwithstanding that she had not given proper statutory notice under Section 47(1) of her intention to return. Is that a correct finding in law?

Mr Vineall, on behalf of the appellants, submits not. He contends that the short conversation relied upon by the respondent cannot amount in law to a binding agreement of the type envisaged by Section 48(1) for three reasons:

(1) the words used were too vague and imprecise to allow the meaning contended for by respondent. The necessary certainty is absent.

(2) there was no intention to create legal relations.

(3) there was no consideration.

We have considered those arguments and we reject them.

In our judgment the words used were capable of precise meaning, namely that the employer, through Mr Dickinson, agreed that the employee would re-commence work on 6th June 1994, and that all necessary steps would be taken by the employer to effect her return to work. Secondly, the parties did intend to enter into legal relations; there was, on 13th May 1994, in force a contract of employment. That contract was to continue until her return to work on 6th June 1994, and thereafter following her return. Finally, the consideration for the agreement in our judgment, was the mutual obligations exchanged; the employer to provide paid work, the employee to supply her services.

In reaching this conclusion we note the imprecise terms of the agreement found to have existed in Lucas v Norton of London Ltd [1984] IRLR 86. We respectfully adopt the reasoning of Bristow J. giving the judgment of this appeal tribunal in that case.

Mrs Deeny raises a cross-appeal. It is contended on her behalf that the Industrial Tribunal was wrong to deduct the saved child-minding costs totalling £591 from her award of compensation. We cannot accept that contention. There was no evidence before the tribunal to support Mr McCarthy's submission that child-minding costs would have been shared between herself and her husband. Even if there was such evidence, that would not vitiate the finding that the whole of the child-minding costs were saved by Mrs Deeny remaining off work.

In these circumstances we dismiss both the appeal and cross-appeal.