United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D RICHARDSON (of Counsel) Bullivant Jones & Co Solicitors State House 22 Dale Street Liverpool L2 4UR
For the Respondent	MR D BROWN (of Counsel) Ms K O'Neill Legal Officer USDAW 188 Wilmslow Road Fallowfield Manchester M14 6LJ


 


JUDGE HICKS QC:

Introduction

Mrs Greaves, the Applicant before the Industrial Tribunal and the Respondent to this appeal, began working for the employer, Kwik Save Stores Limited, on 15 June 1978 as a part-time store assistant in Gilesgate, Durham. She later became a full-time check-out operator and was successively promoted to chief cashier and assistant manager. In February 1993 she had her first baby, taking maternity leave and returning to work without any complications. On her return, however, she reverted from full-time to part-time work (16 hours per week) and from management to the role of store assistant. The Industrial Tribunal found that she nevertheless remained a valued employee who had considerable experience and about whose performance there was never any complaint.

Mrs Greaves again became pregnant. She worked her last day before maternity leave on 8 April 1994 and gave birth to her second child on 20 May 1944. In July 1994 she wrote informing her employer of her intention to return to work on 12 August 1994. However, when that date arrived she found that she was not well enough to start work again. On the same day she obtained a doctor's certificate to that effect, covering a period of two weeks, and handed it in at the Gilesgate store. She remained unwell and obtained and handed in further medical certificates on 26 August, 9 and 26 September and various later dates down to 7 November.

On 3 November 1994 there was a meeting at the store between Mrs Greaves and Mr Old, the employer's area manager. The Industrial Tribunal accepted Mrs Greaves' evidence that its purpose was to discuss the question of her sickness and her future resumption of work and that the content of the discussion concerned when it was likely that she would be fit to resume. It was agreed that she should undergo a medical examination by a doctor appointed by the employer, so that her fitness to return could be confirmed. Later that day Mr Old telephoned Mrs Greaves and told her that he had ascertained that there was no point in sending her the consent form for the medical examination because she had failed to exercise her right to return to work from maternity leave and consequently her contract of employment had already terminated.

The above were all among the facts found by the Industrial Tribunal. It is curious that an additional fact, undisputed and before the tribunal, although not mentioned in its reasons, is that on 10 February 1995 the employer wrote to Mrs Greaves "informing" her that her final date to return after maternity leave was 18 December 1994, that if she was then off sick she was "according to statutory guidelines" allowed a further four weeks off, that as she had not returned "within the specified period" she had lost the right to do so, that accrued holiday pay would be paid on 17 February 1995 and that her P45 would be sent to her home address. Clearly nothing had been done about holiday pay or the P45 until then.

There are other material facts, to which we must in due course return, but they are best understood and discussed in the light of the statutory provisions. The basic history set out above will serve, until those provisions have been deployed, as the factual setting for the tribunal's decision, which was that Mrs Greaves' employment continued until it was terminated by Mr Old's telephone call on 3 November 1994, which constituted an unfair dismissal.

The statutory provisions

The appeal turns on the provisions of the Employment Protection (Consolidation) Act 1978 as they stood before the amendments incorporated by virtue of the Trade Union Reform and Employment Rights Act 1993, themselves now consolidated in the Employment Rights Act 1996. As amended in 1993 the Act distinguished between maternity leave, which seems clearly to be an incident of a continuing contract of employment, and the right to return to work at or after the end of such leave, which may or may not be after the contract of employment has come to an end. The provisions which governed the facts of the present case made no such distinction, being expressed solely in terms of a right to return.

It is necessary to set out the relevant parts of the 1978 Act, as it stood at the material time, fairly fully:

"33 Rights of employee in connection with pregnancy and confinement

(1) An employee who is absent from work wholly or partly because of pregnancy or confinement shall, subject to the following provisions of this Act,-

(a) ...

(b) be entitled to return to work.

(2) Schedule 2 shall have effect for the purpose of supplementing the following provisions of this Act in relation to an employee's right to return to work.

(3) An employee shall be entitled to the right referred to in subsection (1) whether or not a contract of employment subsists during the period of her absence but ... she shall not be so entitled unless-

...

(d) ... she informs her employer in writing at least twenty-one days before her absence begins, or if that is not reasonably practicable, as soon as reasonably practicable:

(i) that she will be (or is) absent from work wholly or partly because of pregnancy or confinement,

(ii) that she intends to return to work with her employer, and

(iii) of the expected week of confinement ...

...

45 Right to return to work

(1) The right to return to work of an employee who has been absent from work wholly or partly because of pregnancy or confinement is, subject to the following provisions of this Act, a right to return to work with her original employer ... at any time before the end of the period of twenty-nine weeks beginning with the week in which the date of confinement falls, in the job in which she was employed under the original contract of employment and on terms and conditions not less favourable than those which would have been applicable to her if she had not been so absent.

(2) ...

(3) If an employee is entitled to return to work in accordance with subsection (1), but it is not practicable by reason of redundancy for the employer to permit her so to return to work she shall be entitled, where there is a suitable vacancy, to be offered alternative employment ...

...

46 Enforcement of rights under s 45

The remedies of an employee for infringement of either of the rights mentioned in section 45 are those conferred by or by virtue of the provisions of sections 47, 56 and 86 and Schedule 2.

47 Exercise of right to return to work

(1) An employee shall exercise her right to return to work by giving written notice to the 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").

(2) An employer may postpone an employee's return to work until a date not more than four weeks after the notified date of return if he notifies her before that day [of certain specified matters] ...

(3) Subject to subsection (4), an employee may -

(a) postpone her return to work until a date not exceeding four weeks from the notified date of return, notwithstanding that that date falls after the end of the period of twenty-nine weeks mentioned in section 45(1); and

(b) where no day of return has been notified to the employer, extend the time during which she may exercise her right to return in accordance with subsection (1), so that she returns to work not later than four weeks from the expiration of the said period of twenty-nine weeks;

if before the notified date of return ... she gives the employer a certificate from a registered medical practitioner stating that by reason of disease or bodily or mental disablement she will be incapable of work on the notified day of return ...

(4) Where an employee has once exercised a right of postponement or extension under subsection (3)(a) or (b), she shall not again be entitled to exercise a right of postponement or extension under that subsection in connection with the same return to work.

(5) If an employee has notified a day of return but there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work on the notified day of return, she may instead return to work when work resumes after the interruption or as soon as reasonably practicable thereafter.

(6) [deals with an interruption of work where no day of return has been notified]

...

48 Contractual right to return to work

(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.

(2) The provisions of section 45, 46, 47, 56 and 86 and paragraphs 1 to 4 and 6 of Schedule 2 shall apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in subsection (1) as they apply to the exercise of the right to return conferred solely by this Part.

...

55 Meaning of "dismissal"

(1) In this Part, except as respects a case to which section 56 applies, "dismissal" and "dismiss" shall be construed in accordance with the following provisions of this section.

(2) Subject to subsection (3), an employee shall be treated as dismissed by his employer if, but only if,-

(a) the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice, or

...

...

56 Failure to permit woman to return to work after confinement treated as dismissal

Where an employee is entitled to return to work and has exercised her right to return in accordance with section 47 but is not permitted to return to work, then subject to section 56A she shall be treated for the purposes of this Part as if she had been employed until the notified day of return, and if she would not otherwise be so treated, as having been continuously employed until that day, and as if she had been dismissed with effect from that day for the reason for which she was not permitted to return.

...

SCHEDULE 2

SUPPLEMENTARY PROVISIONS RELATING TO MATERNITY

PART I

UNFAIR DISMISSAL

Introductory

1. References in this Part to provisions of this Act relating to unfair dismissal are reference to those provisions as they apply by virtue of section 56.

Adaptation of unfair dismissal provisions

2.-(1) ...

(4) The following provisions of this Act shall not apply, that is to say, sections 55, 64(1), 65, 66, 73(5) and (6), 141(1), 142(1) and 144(2), paragraph 11(1) of Schedule 13, paragraphs 7(1)(f) to (i) and (2) and 8(3) of Schedule 14 and paragraph 10 of Schedule 15.

...

PART III

General

Dismissal during period of absence

6.-(1) This paragraph applies to the dismissal of an employee who is under this Act entitled to return to work and whose contract of employment continues to subsist during the period of her absence but who is dismissed by her employer during that period after the beginning of the eleventh week before the expected week of confinement.

(2) For the purposes of sub-paragraph (1), an employee shall not be taken to be dismissed during the period of her absence if the dismissal occurs in the course of the employee's attempting to return to work in accordance with her contract in circumstances in which section 48 applies.

(3) In the application of Part V of this Act to a dismissal to which this paragraph applies, the following provisions shall not apply, that is to say, sections 64, 65, 66, 141(2) and 144(2).

(4) Any such dismissal shall not affect the employee's right to return to work, but-

(a) compensation in any unfair dismissal proceedings arising out of that dismissal shall be assessed without regard to the employee's right to return; and

(b) that right shall be exercisable only on her repaying any redundancy payment or compensation for unfair dismissal paid in respect of that dismissal, if the employer requests such repayments."

We shall have to return to some of those provisions at later points in this judgment by reference to the facts of this case, but make some preliminary general points here.

In the first place it is important to note and keep in mind the terminology of the statute in identifying the formal stages through which the right to return may pass from the moment at which it potentially becomes available by the onset of pregnancy until it is realised by the enjoyment of the benefits specified in section 45(1), including the resumption or extension of the original contract of employment. (We deliberately avoid, so far, the use of that terminology itself). There are at least two such stages, and a question as to the existence or status of a third.

The first stage may conveniently be called "entitlement", because "entitled" is the word used in section 33(1)(b) and (3). An employee, if all the other conditions are fulfilled, becomes entitled to the right when she serves a notice in writing complying with section 33(3)(d).

The terminology of entitlement for that stage is easy to accept and adopt. The same, unfortunately, cannot be said of the next stage, which is the giving by the employee of written notice under section 47 of her "proposal" to return on a specified date (the "notified day of return"). The giving of that notice is described by the statute as the "exercise" of the right. The problem raised by that terminology is that it is strained and unnatural. The natural understanding of "exercise" in such a context is that it has to do with the enjoyment of the right, that is to say with the actual resumption of work or the enforcement of (or at least the present right to enforce) the contract of employment. Unless constant vigilance is maintained it is only too easy to slip back into that usage and then to read it into the statute or into judgments which have not, properly understood, suffered from the same relapse. It has become apparent during the citation of authority that tribunals and courts have not been immune from this error, and it is in our view to blame for some of the fallacious arguments advanced before us. The statute itself does not, at least for the most part, countenance any such reading; the only possible exception we have noticed (it was not canvassed in argument) is in paragraph 6(4)(b) of Part 1 of Schedule 2.

Failure by the employee to become entitled to the right by serving a section 33 notice or to exercise it by serving a section 47 notice has clear consequences; in either event the right is lost. Is there a third stage, in the same sense of some formal action or event without which the employee's right fails to reach fruition? There is clearly a third chronological milestone of potential significance, namely the notified day of return under section 47(1), as postponed or adjusted (if that has happened) under the following subsections. There is, however, no express provision specifying what the employee should do on that date or the consequences of her failing to do it. Obviously, if she appears at her place of work at opening time, fit and willing, and is welcomed back with open arms, all is well. If she is ready but the employer does not permit her return section 56 applies. But what if she cannot, or does not, attend, or attends but is unfit to work? Has her prior exercise of the right revived or continued the contract of employment, so that the only question is whether she is now in breach, and if so with what consequences, or is there a third hurdle which she must jump before the contract can continue or be revived, and if so precisely what is that hurdle in cases other than the simplest ones where there is no obstacle to physical return and resumption of work?

The second general point on the statutory provisions is that the basis of at least one of Mr Richardson's submissions to us, and possibly the assumption behind some of the authorities, is that

paragraph 6(2) of Schedule 2 is a substantive provision. In our view it plainly is not. As this tribunal explained in Crouch v Kidsons Impey [1996] IRLR 79, paragraph 6 is described generally by its title as being concerned with dismissal during a period of absence, but it is sub-paragraph (1) which truly defines its scope: it is to apply to a dismissal if (i) the employee has a statutory right of return, (ii) her contract of employment continues during the period of her absence, and (iii) she is dismissed during that period (after a certain date). The words "period of her absence" in that set of conditions were clearly thought by the draughtsman to need adaptation if section 48 applies, that is if there is a contractual as well as statutory right of return, and sub-paragraph (2) deals with that situation by providing that in those circumstances the dismissal is not to be taken to have occurred during the period of absence if it occurs in the course of the employee's attempting to return in exercise of her contractual right. That provision, however, is only "for the purposes of sub-paragraph (1)"; in other words it is only an interpretative or "deeming" provision ancillary to sub-paragraph (1), which itself is concerned only to define the scope of the paragraph. Neither (1) nor (2) contains any substantive provision; the substantive provisions are in sub-paragraph (3), which dis-applies certain sections of the Act from any dismissal "to which this paragraph applies" and sub-paragraph (4), under which "any such dismissal" is not to affect the employee's right to return to work, with certain qualifications. (page 81, paragraph 4)

The third point to note at this stage is one already briefly made, that the Act is concerned primarily with a "right to return" rather than with the duration of the contract of employment. Section 56 seems to contain the only statutory extension (or rather deemed extension) of the contract of employment in this context. Section 33(3), in particular, expressly refrains from interfering with the contractual regime by its use of the words "whether or not a contract of employment subsists during the period of her absence". The terms of section 45(1) are clearly applicable primarily to a situation in which "the original contract of employment" no longer subsists. It is important, in our view, to disabuse oneself of any assumption that the existence or otherwise of a contract of employment is determined by the existence or otherwise of a right to return under the statute. Except where the statute expressly interferes with contractual relationships the question whether the contract of employment continues during and beyond pregnancy and confinement, and if so for how long, are simply matters for the law of contract.

We return to the relevant facts and to the decision of the Industrial Tribunal, expressed now in the light of the statutory provisions.

The decision

Although the Industrial Tribunal made no express finding on this point it is implicit in its recital of the facts, and not in dispute between the parties, that Mrs Greaves complied with the requirements of section 33 and became entitled to the right to return.

There is a clear finding that she validly exercised that right in the statutory sense, that is by serving a notice complying with section 47(1) which specified 12 August 1994 as the "notified day of return". There is also an express finding that she did not postpone that date under section 47(3), not having given her employer a medical certificate before 12 August; handing one in on that date did not suffice. No other basis for postponement, extension or modification was canvassed, and the tribunal accordingly found that the notified day of return remained 12 August 1994.

None of those express or implied findings of fact is challenged on either side.

Having made those findings, and having then proceeded to recount briefly some of the subsequent events, the tribunal continues:

"11 In the light of these events, it seems to us to be central to this case to decide what construction is to be placed upon events of 12 August 1994. We have come to the conclusion that the proper inference to draw from the evidence taken as a whole is that on that day, as she was entitled to do, the applicant exercised her right to return to work from maternity leave. True it is that no-one ever spoke in such terms or, at least, there was no evidence to this effect nor, it seems, did Karen Thomas or anyone else on behalf of the respondent give any thought to the significance of the events as they were unfolding. However, we are of the view that looked at objectively the proper interpretation of these events leads to the conclusion that the applicant returned to work from maternity leave but having handed in an appropriate medical certificate immediately went off sick. It is of singular importance, we think, that the applicant actually returned to the store on the notified day of return and then handed in a medical certificate. It seems to us that it is unhelpful to become embroiled in a semantic argument as to whether such a return to work was actual or notional. Labels are of no consequence and it is the substance which matters. We find as a fact that on 12 August 1994 the applicant returned to work from maternity leave and then went off sick immediately."

For the reasons which we have given the initial statement that on 12 August 1994 Mrs Greaves "exercised her right to return to work" can be understood only as an unconsidered departure from the statutory terminology; the core and substance of the tribunal's conclusion is to be found in the words " ... looked at objectively ... the applicant returned to work from maternity leave but ... immediately went off sick", repeated in substance as they are in the closing sentence: "We find as a fact that on 12 August 1994 the applicant returned to work from maternity leave and then went off sick immediately". It is implicit in that finding and in the remainder of the tribunal's reasons that that fact was the necessary and sufficient condition for Mrs Greaves' enjoyment of the full benefit of the right to return, as set out in section 45(1), so that thereafter she was employed "in the job in which she was employed under the original contract of employment and on terms and conditions not less favourable than those which would have been applicable to her if she had not been ... absent", and that without what the tribunal found to have been a return to work on that date she would not have been so entitled.

The tribunal then goes on to consider in detail the evidence as to the events of 3 November 1994, to make its findings of primary fact about what happened on that date, and to conclude that it amounted to unfair dismissal.

Mr Richardson, for the employer, contends that the tribunal erred in law in its analysis of what happened on 12 August 1994 and in the conclusion which it drew. He does not, as we understand it, challenge the finding that if (contrary to that contention) Mrs Greaves was in full enjoyment of section 45(1) rights from 12 August 1994 what happened on 3 November 1994 was an unfair dismissal. On this point his skeleton argument reads: "If Mrs Greaves had indeed returned to work in accordance with the statutory scheme, this conclusion [that her contract of employment subsisted and she had been dismissed on 3 November] would be justified".

Can the decision be upheld?

It is implicit in our discussion of the statutory provisions above that the tribunal's approach requires examination in the light of the possibility that it may be wrong in one of three ways, or may be right. The tribunal may have been wrong:

(i) in holding, or assuming, that some action by Mrs Greaves was necessary on 12 August 1994 to complete the statutory process, as distinct from simply being required by way of performance of her duties as an employee, the statutory process having been completed by her section 47 notice; or

(ii) in holding or assuming, if some action was necessary to complete the statutory process, that it must take the form of a return to work; or

(iii) in finding, if action in the form of a return to work was necessary for that purpose, that Mrs Greaves performed it.

Mr Richardson submits (or perhaps to some extent assumes) that the tribunal was correct in (i) and (ii), but contends that it was wrong in (iii), not just in fact, but in the sense that on its undisputed findings of primary fact what happened could not in law amount to a return to work.

Mr Brown, for Mrs Greaves, in the first instance contends that the tribunal was right in (iii), but some of the ways in which he puts that seem to us to be tantamount to saying that it was wrong in (i) or (ii) and in any event, however he may finally wish to put it, we have to ask ourselves whether that is the case.

The reason for stating that the tribunal, on points (i) and (ii), held or assumed that some action, namely a return to work, was necessary to complete the statutory process is simply that otherwise they could not have supposed it "central to this case" to decide whether it happened, for no-one could have imagined or suggested that under a subsisting relationship of employment a genuinely sick employee who attends with a valid medical certificate instead of actually reporting for work has thereby brought the employment to an end.

The case against the tribunal's view on point (i) may be expressed most simply as one which takes seriously the statutory vocabulary of a right which arises by the service of a section 33 notice and is exercised by the service of a section 47 notice; once such a right has arisen and been exercised, it may be said, nothing remains on the employee's side but to enforce it if its enjoyment is infringed or challenged. If it is the employer who claims to take advantage of some act or omission of the employee subsequent to the exercise of the right in that way then that claim must be tested on the basis that the right subsists and requires no further "exercise".

That seems to us to be a perfectly coherent and workable scheme and indeed an attractive one. As Wood J said, in delivering the judgment of the Employment Appeal Tribunal in Institute of the Motor Industry v Harvey [1992] ICR 470, after referring to what he describes as the "suspension" of the basic obligations on each side respectively to provide and carry out work during maternity absence:

"That suspension is brought to an end by the exercise of the applicant of her right to return. Until she has exercised that right, there is no obligation upon an employer to re-instate her, that is to provide suitable work and to make proper payment. The obligation is triggered by the section 47 notice which may never be given with the 29 week period.

Problems of the right to return to work are clearly becoming more prevalent and it is important in industrial relations that there should be a flexible and reasonable approach from both sides. The provisions of the statute itself emphasise this. There will be need for discussions and equally no doubt there is a need for a definite date of return as the applicant's return may require a reshuffling of staff. The notice under section 47(1) used to be a seven day notice; that was clearly found to be unreasonably short. It is now not less than 21 days. Of course it may be longer. The purpose of that notice is first, to establish that the applicant is exercising her right to return; secondly, to remove the suspension on the employer's obligation to provide suitable work and remuneration which had been suspended; and thirdly, to allow the employer to make final arrangements as necessary or desirable in order to comply with his responsibilities." (page 480A)

The question is whether that interpretation can be sustained in the light of the statutory provisions as a whole and the authorities.

The first difficulty is that the right itself is defined in section 45(1) only as a right "to return to work ... under the original contract of employment", not as a restoration of the contract independently of the return. Another important fact is that section 56, which provides for the principal sanction against a defaulting employer by creating a deemed dismissal, gives the benefit of that sanction to an employee who "is not permitted to return to work", implying the need for an attempt of some kind, and does so by "deeming" employment, implying the absence of an actual contract of employment. Moreover the deemed dismissal occurs with effect from the notified day of return, implying that whatever it is that the employee is required to do or to attempt is something that occurs on that day.

Those are perhaps the most basic indications that the statute envisages a right which, despite having been "exercised", does not fully restore the employee's position in the absence of some further step to be taken by her on the relevant day. In argument, however, much attention (perhaps more) was paid to the provisions which modify the normal expectation (Mr Richardson would say requirement) of a return to the same job on the day originally notified.

Of these, sections 45(3) and 47(2) seem to us to carry matters no further, since they are directed to enabling an employer to relieve itself of the rigour of exact compliance on its side and therefore cast no light on what obligations, if any, lie on the employee.

Mr Richardson placed great emphasis on section 47(3) and (4), arguing that there, and there alone, is to be found any concession to an employee unable to return for health reasons, that they expressly limit any extension on that ground to four weeks, and that it would be paradoxical in the extreme if, as he put it, Mrs Greaves would have been worse off by complying with those provisions than by failing by one day to do so. Mr Brown replied, in effect, that that begs the question; section 47(3) and (4) give exactly the benefit which they purport to give, namely a postponement of up to four weeks in the day of return already notified or to be notified, but leave untouched the question what, if anything, the employee is then required to do. Mrs Greaves, he said, was indeed worse off, not better, by missing the section 47(3) deadline, because she passed from the more advantageous "section 56 regime" to the more rigorous requirements of section 55 four weeks earlier than she might have done.

There is much force in Mr Brown's submissions, and we do not consider that the section 47(3)/(4) argument is the outright winner portrayed by Mr Richardson; if those provisions stood alone they would be of little weight, if any. However they do not stand alone. They are at least consistent with the apparent implications of sections 45(1) and 56 already mentioned and are even more germane in relation to their near neighbour, section 47(5), which we find the most significant "extension" provision because it is framed not in terms of postponing the notified day but of excusing the employee from what (by implication) she should otherwise then do. The combination of sections 45(1), 56 and 47(5), with some support from 47(3) and (4), leads us somewhat regretfully to the conclusion that as a matter of statutory construction, and subject to any binding authority to the contrary, something more is required of an employee to complete the statutory process than simply to acquire the right to return by a valid section 33 notice and to exercise it by a valid section 47 notice.

It is convenient, before turning to the authorities, to consider point (ii) also as an untrammelled exercise in statutory construction. Given that some action by the employee is necessary, is a physical return to work on the notified day (subject to any postponement or extension under the statute) the only effective fulfilment? The most obvious and immediate reason for answering that question in the affirmative is that the statutory provisions already reviewed in dealing with point (a) are all expressed in terms of a "return to work" and that those words should be given their natural and ordinary meaning. Moreover the concept of an "attempted" return, implicit in section 56 and explicit in paragraph 6(2) of Schedule 2, is natural and straightforward in relation to a physical return but difficult or impossible to apply to situations of the sort in which Mr Brown sought to argue that other forms of compliance by the employee would suffice, for example sudden incapacitating illness.

The principal argument to the contrary is the equally obvious, extreme and apparently gratuitous unfairness of such an unqualified requirement. An employee who has premonitory symptoms early enough on the day before the notified day of return, and is sufficiently alert to the statutory consequences, can rush to a doctor and deliver a certificate in time to comply with section 47(3). Another, who has no such warning or is too innocent or too conscientious to act on it, but wakes up on the notified day to incapacitating pain or disability, has irretrievably lost all the benefit of her right to return, even if the incapacity lasts only one day and she is fit, ready and willing to return next day and attempts to do so. Parliament, it may be argued, cannot conceivably have intended so capricious and unjust a result, and some construction must be found which escapes it.

We feel the full force of that argument and would gladly accede to it if we could, but there are limits to the extent to which a court or tribunal administering statutory law can disregard the plain words of the statute. We are regretfully compelled to conclude that this is a case outside those limits, so that what is required of the employee on the relevant day is an actual return to work.

Those are our conclusions on what we have called points (i) and (ii) without the benefit of the authorities cited to us, to which we now turn.

The earliest such case was Lavery v Plessey Telecommunications [1982] ICR 373. In that case there was a valid section 33 notice but no valid section 47 notice. The employee's attempt to return to work was rejected by the employer and her claim of unfair dismissal failed. Mr Richardson relied on the following passage in the judgment of the Employment Appeal Tribunal, delivered by Browne-Wilkinson J:

" We will assume (without deciding) that the contract of employment continued ... and that there was an implied agreement that the complainant should have leave of absence ... . However, on the facts, the only possible agreement to imply as to the terms of her absence was an agreement that she should be absent from work until she exercised her statutory right to return or such statutory right ceased to be exercisable. "(page 378D)

Mr Richardson first assumed, and when that was challenged submitted, that "exercised" and "exercisable" there refer not to the statutory exercise under section 47 but to the actual return to work. He was constrained to do so, we take it, because the Employment Appeal Tribunal must have been proceeding on the basis that the implied extension of the contract comes to an end when its statutory revival begins, which would take that revival back to the date of the section 47 notice if that is the "exercise" referred to. The truth of the matter, in our view, is that the tribunal's mind was never directed to that distinction in that case; there was no section 47 notice, so what later steps, if any, were required was never canvassed and no conclusion of any relevance to the present issues can be drawn. Lavery went on appeal to the Court of Appeal ([1983] ICR 534) but the judgments there do not carry the matter any further.

The next case was McKnight v Addlestones (Jewellers) Ltd [1984] IRLR 453. The employee there had not given notice under the equivalent (in the relevant Northern Ireland legislation) of section 33. We shall have to return to it on a different issue, but like Lavery it cannot and does not cast any light on the question what, if anything, the employee needs to do on the notified day, because that stage was never reached.

In Duwuona v John Lewis PLC [1987] ICR 788 the employee had served a valid section 33 notice. She obtained an extension under section 47(3)(b), so that the 29-week period prescribed by section 45(1) was extended by four weeks at a date when no day of return had been notified. It would seem, by inference from the passage which we quote below - although there is no express reference to the point in the earlier narrative - that no section 47(1) notice was ever given. The employee remained unwell and did not return to work within the 29-week period (or, indeed, within a further week's leave she had been allowed, although that is not material to the issues of statutory construction).

The Court of Appeal, in the judgment of Balcombe LJ, with which Ralph Gibson and Slade LJJ agreed, considered the effect of the operative contractual provisions and concluded that section 48 applied. The judgment continues:

" Once it is accepted that this is a section 48 case, then the rest falls into place. The employee cannot complain of unfair dismissal under section 55 because of the provisions of paragraph 6(2) of Schedule 2; she is confined to her rights under section 56: see Lavery ... . But she cannot complain of unfair dismissal under section 56 for two reasons. The first and primary reason is that she did not exercise her right to return to work in accordance with section 47, even as modified by section 48, because she sought to return to work at a date later than that at which ... she was entitled so to do. The second reason is that, because of the employee's belief that she was entitled to prolong her maternity leave indefinitely provided she had the appropriate sick notes, she never gave notice under section 47(1) of the day on which she proposed to return to work."

We find that a very difficult passage to understand, for a number of reasons. Leaving aside, for the moment, the reference to paragraph 6(2), the first problem is that although the first reason is expressed as a failure to exercise the right "in accordance with section 47" it seems that the facts which are being referred to at that point are not those concerned with an exercise in the section 47 sense but those concerned with actual return to work. Secondly, although that is described as the "first and primary" reason it is also said under the "second" reason that there was no section 47 notice, whereas both logically and chronologically that must be the first question to be addressed, and the only one which needs to be addressed if the employee fails to comply.

Despite the initial reference to section 47 and the use of the word "exercise" we are sure that we must take the "first and primary" reason to rest on actual return. What we are left with, therefore, is a plain expression of view by the Court of Appeal that actual return on the relevant day is a necessary step, treated by the Court of Appeal itself as the primary ground for its decision, albeit another reason was given which seems on its face to render the first reason unnecessary and obiter.

Next in date is Kelly v Liverpool Maritime Terminals Ltd [1988] IRLR 310. There the statutory procedure was not followed, but it was agreed that the employee's maternity leave would, in effect, be on the same terms as those set out in the Act, and that she would have the right to return to work approximately 29 weeks after the birth of her baby. At about that date she wrote to her employers as follows:

"Unfortunately at this moment in time I am unable to return to work because of my recurring bad back problem. According to my doctor it will be several months before I can consider my return ..."

In the Court of Appeal Glidewell LJ said:

"... in my judgment a letter from Mrs Kelly which contains the phrases "I am unable to return to work" and "it will be several months or more before I can consider my return", cannot sensibly be construed as an attempt to return to work; it is clearly an indication of inability to return to work." (paragraph 15)

There was another issue in the appeal, to which we must return, and to which the reasoned part of the judgment of Taylor LJ was confined. Sir Roualeyn Cumming-Bruce agreed with both judgments. Although the treatment is brief that seems to be a binding decision that a return, or at least an attempted return, is required, and that the communication of medical reasons for inability to return, at least if for an extended period, is not such an attempt.

We have already referred to the judgment of the Employment Appeal Tribunal in IMI v Harvey, which lends some support to the view that "exercise", in the sense of a section 47 notice, is all that is required to complete the employee's rights, but in that case the claim failed because there was no such exercise, so anything said or implied about whether any further steps were needed was obiter.

Our conclusion from the cases cited to us, therefore, is that two decisions of the Court of Appeal encourage, and one of them probably binds, us to maintain the decisions to which we ourselves had come by way of statutory construction on what we have called points (i) and (ii), and that there is at most a persuasive obiter dictum in the Employment Appeal Tribunal to the contrary. We therefore confirm those decisions.

After we heard argument and reserved our decision, and while this judgment was in course of preparation, the judgment of the Employment Appeal Tribunal in Crees v Royal London Insurance (unreported, 26 September 1996) was handed down. What we have called point (i) was there fairly and squarely taken and vigorously pursued on behalf of the employee and rejected, but in view of the fact that that decision was not available for consideration at the hearing before us we do not rely upon it in support of our own, which was reached independently and before seeing Crees.

That leaves point (iii), which can be dealt with quite briefly, because if, as we have held, an actual return to work on the relevant day is required then that requirement was plainly not met. The Industrial Tribunal placed great weight on the fact that Mrs Greaves took her medical certificate to the store herself, and was therefore physically present at her place of work on the notified day of return, but Mr Brown wisely disclaimed reliance on that as a basis for justifying the result; it was indeed at that stage that it became apparent that his submissions were substantially addressed to what we have distinguished as point (ii). The law in this field is sufficiently technical as it stands; it would be brought into disrepute if cases turned on who turned up with the sick note (employee, relative, courier or postman), or where (place of work or head office). The simple fact is that sending, or calling for the sole purpose of delivering, a medical certificate showing inability to work is incompatible with returning to work. The Industrial Tribunal erred in law in concluding otherwise. If explicit misdirection in this regard must be identified it is to be found in the words: "It seems to us that it is unhelpful to become embroiled in a semantic argument as to whether such a return to work was actual or notional". As we believe and have held the return must be actual; the difference is not "semantic" in the pejorative sense evidently intended by the tribunal.

It follows that the appeal must be allowed.

The consequences

Mr Richardson submits that the consequence of allowing the appeal is that the Industrial Tribunal's decision that there was unfair dismissal must be reversed, without remitting the application for reconsideration or rehearing. He puts that in two ways, as a matter of contract and by virtue of the statute.

In point of principle the first ground must in our view be rejected. Having found a return to work, which restored or perpetuated the original contract of employment by virtue of section 45(1), the Industrial Tribunal did not consider or answer the question whether but for that return the contract of employment would, by the words and conduct of the parties, have come to an end on 12 August 1994 or have continued or been revived on or after that date (Mr Richardson conceded that it subsisted until then - he said "in suspensory form"). That was an issue of fact which in the absence of a return to work needed to be resolved. This was not one of those cases where there was no communication or other interaction between the parties arguably capable of having any contractual effect, so that an appellate body could reach its own conclusions. The tribunal finds a number of facts in paragraphs 7, 9 and 10 of its reasons as to the events which occurred on 12 August 1994 and between then and 3 November, including in particular conversations between Mrs Greaves and Mr Mostyn, but concludes only that there was much force in the submission on Mrs Greaves' behalf that there was a "live and interactive relationship" between the parties. That is not the language of contractual analysis, and although the tribunal continues that "In legal terms, the applicant's contract of employment continued to subsist" that cannot be treated as an independent and alternative ground for its decision in the context of reasons which immediately continue in the terms of paragraph 11 already quoted.

Mr Richardson submitted that there was no factual issue; the authorities compelled the conclusion that the contract of employment came to an end on 12 August 1994. We therefore turn to consider those authorities, beginning with two already mentioned in discussing points (i) and (ii) in the preceding section.

In McKnight the employee, as already indicated, had given no valid section 33 notice, but did nevertheless purport to give a section 47 notice. Before the (ineffective) notified day of return the employer informed her that she was not entitled to return, and that was the "dismissal" complained of. It seems clear from the report to have been common ground that nothing whatever had passed between the parties which could have founded any argument that contractual relations could have been established, continued or varied at that stage. It was in that context that Gibson LJ said:

"No doubt the Tribunal found that the employment contract between the applicant and the respondent continued to subsist after the applicant went on maternity leave ... but it seems to us that the only relevant inferences as to the parties' intentions which can reasonably be drawn from this finding are ... that the contract ... was to continue in existence on the basis only that the appellant might be entitled in due course to exercise the statutory right to return in which event the contract would revive and become fully operative again. ... if ... the appellant ... failed to exercise [the right] effectively, the whole basis for the continuation of the contract ... would be gone and the contract would automatically terminate ... ." (paragraph 8)

In our understanding that is simply a finding of the appropriate inference to draw on the facts of that case, as summarised above, and in particular the fact that the employer did nothing at the relevant period except to point out the employee's failure to comply with the statutory requirements and the consequences of that failure. Neither the positive nor the negative aspect of that state of affairs obtained here.

The other case already considered is Kelly. There again there was no response by the employer to the letter quoted above, nor any other communication from the employer before it took the point that the employee had lost her right to return. It is true, however, that that reaction was not as prompt as in McKnight, since three further doctor's certificates intervened. It was submitted on the employee's behalf in the Court of Appeal that by making no response the employer impliedly agreed that the employment should continue. Glidewell LJ said:

"Mr Morrow, for the respondents, replies as follows. Firstly, silence in answer to a request cannot constitute an agreement. With that simple proposition I agree ... ." (paragraph 23)

Taylor LJ, agreeing, pointed out that there was no positive conduct by the employer and that the tribunal's findings of fact clearly showed that the parties were not ad idem. This, therefore, is again a case turning on evidence and findings of fact clearly distinguishable from those in the present appeal.

We turn to cases not cited on the points dealt with in the preceding section, again two in number. The first is Hilton International Hotels (UK) Ltd v Kaissi [1994]IRLR 270. In that case the pregnant employee was already on sick leave before her maternity leave was due to begin and continued to receive sick pay until the birth of her baby on 30 October 1990. She then received statutory maternity pay until 16 January 1991. On 20 February 1991 she submitted a medical certificate in support of a letter stating that she was unable to return to work due to illness. On 25 February 1991 the employer replied, stating that her employment had been terminated. In the employer's notice of appearance to the employee's application to the Industrial Tribunal the employer stated that the date on which employment ended was 25 February 1991. The employee had served no section 33 notice. The Tribunal found that she remained an employee of Hilton down to 25 February 1991 and that the employer's letter of that date was a dismissal within section 55(2)(a) and was unfair. The Employment Appeal Tribunal dismissed the employer's appeal.

That decision has two aspects. In the first place its ambit is strictly that the Industrial Tribunal did not err in law, and indeed it is expressed in those terms at the beginning of paragraph 23. That involves, in particular, that the Tribunal did not err in law in reaching the crucial finding of fact that the contract of employment continued until 25 February 1991. Much of paragraph 23 of the judgment is concerned with drawing attention to factors which justify that conclusion. The fact that the employee was on sick leave and continued to receive sick pay down to the date of birth is said to be "consistent with the continuation of her contract, not with its termination". Mrs Kaissi's contract provided expressly for maternity leave, and it is said that in cases where there has been a section 33 notice but no section 47 notice "it has been held that the contract of employment may continue to exist while [the employee] is on maternity leave, unless it is terminated by agreement, resignation or dismissal". It is also said that when Mrs Kaissi stopped receiving maternity pay "she simply continued on leave from work with the permission of Hilton". The judgment had earlier stated that the employer's agreement in its notice of appearance that employment ended on 25 February 1991 was important.

On issues of fact other cases are merely illustrative, but even in its factual aspect Kaissi, if correctly decided, is incompatible with any universal rule that the contract of employment cannot survive a failure to return at the end of maternity leave.

The second aspect of the judgment in Kaissi concerns its statement of principle, which in our understanding is to be found at the end of paragraph 23(3):

"The essential point is that the question whether or not the contract of employment comes to an end depends on the agreement and actions of the parties, which may differ from case to case. In brief, the contract may continue if that is what the parties expressly or impliedly agree and neither takes any action to bring it to an end. If the parties agree expressly or impliedly to bring a contract to an end or either of them takes appropriate action to bring it to an end, then the contract will determine. The continuance or discontinuance of the contract is a matter of contract, not a matter of statute."

The final case on this point is Crouch v Kidsons Impey [1996] IRLR 79. Mrs Crouch had served no section 33 notice. She was paid statutory maternity pay. She wrote to her employers with notice of her wish to return to work on a specified date, but that was ineffective as a section 47 notice because of her failure to comply with section 33, and her employers before the specified date informed her that she had no right to return and that there was no job for her to return to. The Industrial Tribunal dismissed the employee's application on a basis which assumed that her contract of employment continued to that date. The Employment Appeal Tribunal held that the Industrial Tribunal had erred in law in assuming, without addressing the question as an issue of fact or making any finding on it as such an issue, that the contract of employment continued in that way.

In the course of its judgment the Employment Appeal Tribunal quoted and agreed with the statement of principle in paragraph 23(3) of Kaissi set out above, having earlier expressed its own conclusion on the same point as follows:

" Since s. 56 did not apply, the question whether the contract of employment continued was one to be decided according to the terms of the contract and the common law ... ." (paragraph 8(3)

Mr Richardson relied on the fact that in that case the conclusion of the Employment Appeal Tribunal was that on the primary facts found by the Industrial Tribunal the contract of employment "on any view" terminated upon the cessation of maternity pay or on the first pay day thereafter. That conclusion, however, was reached on facts which did not include any communication between the parties at the relevant time capable of having any contractual effect. Where there is evidence of communications arguably capable of having such an effect Crouch does not, in our understanding, suggest that it should be ignored, or that effect cannot be given to any findings based on it.

None of those authorities, in our judgment, requires or even suggests that the conclusion to which we had arrived on principle on the contractual issue raised by Mr Richardson needs to be abandoned or modified; on the contrary the statements of principle in Kaissi and Crouch reinforce it. It is true that those two cases were ones in which there had been no valid section 47 notice, as there was here, but in contractual terms we do not see how that can invalidate the principle, although it may, of course, be a material part of the factual matrix in which the effect of parties' words and actions falls to be assessed. Whether it has an impact on Mr Richardson's argument that the statute requires us to reverse the Industrial Tribunal's decision is a question to be addressed as part of the consideration of that argument, to which we finally turn.

Mr Richardson's submissions on this point were framed by reference to certain passages in some of the authorities already referred to, and we must in due course consider those authorities, but we wish first to understand and address the issues of statutory construction on their merits. The course taken by the argument was such that we have not found it easy to express the employer's case precisely in the form of propositions, but doing our best we believe it runs as follows:

(1) The rights of an employee who has been absent from work because of confinement to complain of unfair dismissal are conferred by section 56.

(2) Such an employee cannot complain of unfair dismissal under section 55 because of the provisions of paragraph 6(2) of Schedule 2.

(3) Mrs Greaves was such an employee.

(4) Her claim under section 56, upheld by the Industrial Tribunal, necessarily fails on our conclusions above as to the errors of law into which the tribunal fell.

(5) By reason of proposition (2) she has no claim under section 55.

(6) Therefore her application wholly fails.

Propositions (3) and (4) are plainly correct and (5) and (6) no doubt follow if (1) and (2) are also accepted. This argument therefore turns on the accuracy of (1) and (2).

In our judgment proposition (1) is not correct. The conditions for the application of section 56 are not simply that the employee should have been absent because of confinement but that she:

(i) "is entitled to return to work";

(ii) "has exercised her right to return in accordance with section 47"; but

(iii) "is not permitted to return to work".

In (i) the phrase "to return to work" plainly refers to the right granted by the statutory provisions and defined by section 45, and the reference to entitlement is equally plainly to fulfilment of the conditions of section 33(3). In (ii) the condition of exercise is explicitly defined by reference to section 47 and the "right to return" must therefore again be the same right as that in (i). It follows, in our view, that "return to work" in (iii) is concerned, and concerned only, with a return or attempted return under that same right, all the conditions on the employee's part for its implementation having been fulfilled. That conclusion is reinforced by the provision of section 56 that the deemed dismissal under that section has effect from the notified day of return.

We also reject proposition (2). In the first place paragraph 6(2) is, on its face, restricted to cases where section 48 applies. More generally, however, paragraph 6(2) is neither needed for the exclusion of section 55 nor directed to achieving it. It is not needed because the exclusion of section 55, where section 56 applies, is dealt with in subsection (1) of section 55 itself and by paragraph 2(4) of Schedule 2. The effect of those provisions is simply that if section 56 applies section 55 does not; in other words an employee cannot on the same facts rely on both. That is perfectly straightforward and rational and leaves no lacuna. By "on the same facts" we mean, of course, the facts as found; there is no reason why a claim should not be made in the alternative if there may be an arguable question whether or not the situation is within the scope of section 56, although there will no doubt be many applicants for whom in practice it is plainly section 56 or nothing. Paragraph 6(2) is not directed to excluding section 55 because, as we have already pointed out, it is not a substantive provision. It is an interpretation clause ancillary to paragraph 6(1), which is itself a "scope of application" clause. The substantive provisions of paragraph 6 are in sub-paragraphs (3) and (4), which have nothing to do with the exclusion of section 55. Sub-paragraph (3) does indeed exclude certain sections from application to dismissals to which the paragraph applies, but 55 is not among them.

It follows that on our construction of the Act Mr Richardson's submission on this point fails. The fact that Mrs Greaves' claim under section 56 has failed is no objection to a claim under section 55 if she establishes as a fact that there was a contract of employment between her and the Appellant in existence on 3 November 1994 and that she was then dismissed. On the contrary, although the facts are a matter for the Industrial Tribunal, the rejection of her claim that she "returned to work" in the statutory sense on 12 August 1994, the finding that that was the "notified day of return", and the further facts already found, seem likely to exclude one of the possible objections to a section 55 claim, namely the objection that what happened on 3 November was an attempted "return to work" in the statutory sense.

The remaining question is whether we are compelled by authority to reach the opposite conclusion.

Mr Richardson relied first on Lavery v Plessey in the Employment Appeal Tribunal, referred to above. The most germane passage in the judgment is the following:

"... Whether an employee is relying on a statutory right to return or a contractual right to return, her right is governed by section 48. Accordingly her only statutory remedy for failure to allow her to return is by way of section 56 (i.e. a deemed dismissal on "the notified day of return"). She has no right to complaint of any "dismissal" in the conventional sense defined in 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." (page 379F)

In our view that is wholly consistent with our own conclusions if, as we believe to be correct, the words "right to return" are there used in the sense explained in our exegesis of section 56 above and the word "exercising" is to be understood as having its ordinary non-technical meaning.

The next of Mr Richardson's authorities was Lavery in the Court of Appeal, also referred to above. The relevant passage is an extract, quoted with approval by the Court of Appeal, from the judgment of the Employment Appeal Tribunal in Kolfor Plant Ltd v Wright [1982] IRLR 311, delivered by Lord McDonald:

"In our opinion an employee who claims to have been dismissed through the failure of her employer to permit her to return to work after absence due to pregnancy or confinement must bring herself within the provisions of section 56. Paragraph 6(2) of Schedule 2 makes it quite clear that even where her contract of employment subsists an ordinary claim for unfair dismissal is not open where the dismissal occurs in the course of her attempting to return to work, which is the position here." (page 543E)

That is a little more problematic, because of the apparent reliance on what seems to us to be a misapprehension as to the effect of paragraph 6(2), and because it is not as clear as in the words of Browne-Wilkinson J that "return to work" has its statutory meaning. Lord McDonald, however, immediately goes on to state that the opinion he has just expressed is "in accordance with the reasoning" [of the EAT] in Lavery, from which we conclude that any apparent widening of the meaning of "return to work" was not intended and should not be ascribed. On that basis this passage causes us no difficulty in its principle or result, neither of which is affected by the reference to paragraph 6(2).

Mr Richardson relied most heavily on the passage from the judgment of Balcombe LJ in Duwuona v John Lewis PLC which we quoted earlier. We have already expressed some of our difficulties in understanding that passage, and for present purposes they are added to by the reference to paragraph 6(2). If Duwuona were a case on all fours with this, and this passage were its ratio decidendi, we should be bound by it. In our view, however, it is distinguishable. The passage in question is introduced and governed by the words "Once it is accepted that this is a section 48 case ... ". In our view the reference to paragraph 6(2), which as we have already pointed out is by its terms confined to section 48 cases and on which the reasoning of the Court of Appeal turns, must be read in that light and need not be applied in a case such as this, in which section 48 played no part in the decision of the Industrial Tribunal or the argument on the appeal.

Finally, Mr Richardson very properly referred us on this point to Institute of the Motor Industry v Harvey, another case which we have already considered, although it does not advance his cause on the present issue. The judgment records part of the argument for the employee as follows:

" The second submission from Mr Pullen runs thus: the only purpose of this paragraph is to preserve the applicant's right to return to work in those cases where she has been dismissed and compensated, provided she repays that compensation: see paragraph 6(1) and (4). It is for this reason that paragraph 6(2) has been inserted. Therefore if she is not seeking to reply upon a right to return, there is nothing in the paragraph to prevent her relying upon a constructive dismissal which relies upon a fundamental breach which occurs during that period when she is attempting to return." (page 481D)

Save for the omission of any reference to paragraph 6(3), which is probably not significant, that is essentially the construction of paragraph 6(2) which we have adopted. On that point the judgment, in the course of rejecting submissions from both parties that the application need not be remitted to the Industrial Tribunal, said:

"Whether or not her alleged dismissal occurred in the course of her attempting to return to work within the meaning of the provisions of paragraph (6(2) of Schedule 2 is a matter for the tribunal hearing the case." (page 482B)

The Employment Appeal Tribunal therefore reached no conclusion on that submission.

We do not, therefore, consider ourselves to be prevented by binding authority from giving effect to our view that nothing in the statutory provisions requires us to reverse the Industrial Tribunal's decision instead of remitting the application for reconsideration.

Conclusion

For the reasons given in the section of this judgment headed "Can the decision be upheld?" the appeal is allowed. For the reasons given in the section headed "The consequences" we remit the application to the Industrial Tribunal. Since the tribunal, as constituted to hear the application in the first instance, has heard all the evidence and erred only in law and in failing to make findings on certain issues of fact which become material on the law as we have held it to be, we consider that if it can be reconstituted that should be done rather than that a new tribunal be convened to hear the whole application afresh.