United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M DUGGAN (of Counsel) Messrs Gepp & Sons Solicitors 58 New London Road Chelmsford Essex CM2 0PA
For the Respondent	MR E GRANT (of Counsel) Messrs Cartwright Lewis Solicitors 100 Hagley Road Edgbaston Birmingham B16 8LT


 


JUDGE PETER CLARK: This is an appeal by the employer, Lewis Woolf Griptight Ltd ["the Company"] against a decision of the Birmingham Industrial Tribunal sitting on 28th June 1996 that it had unfairly dismissed its employee, Mrs Corfield ["the Applicant"] and had unlawfully discriminated against her on the grounds of her sex. Extended reasons for that decision are dated 13th August 1996.

The facts

The Applicant commenced employed with the Company in July 1989 as a secretary to the Operations Director. In 1990 she was promoted to work for the Chairman and Managing Director, Mr E Hurst, and in October 1993, following the appointment of Mr Watson as Chief Executive, she worked for both Mr Hurst and Mr Watson.

In October 1994 the Applicant informed Mr Watson that she was pregnant. On 10th March 1995 she wrote to Mr Watson informing him that she would be commencing maternity leave on 17th April and would be returning to work on 21st August 1995.

Her daughter, Charlotte, was born on 6th June 1995 and on 8th August Mr Watson wrote to the Applicant asking her confirm her intended date of returning to work. On 15th August she replied, stating her intention to return on 21st August.

On 18th August she wrote again, this time to Lesley Bishop, personnel officer. She was suffering from pains in her joints and consulted her general practitioner, who gave her a two week sick certificate which she enclosed with that letter. In the letter, she enquired whether she was eligible for Statutory Sick Pay ["SSP"] and added that if she was not, would Mrs Bishop return the original doctor's note and form SSP1 with the relevant section completed by the Company? She asked that Mr Watson be informed of the situation.

On 24th August she had not heard from Mrs Bishop and she telephoned her. Mrs Bishop said that she did not know what was happening with the form SSP1 and the Applicant told her that she needed to return it to her for forwarding to the Benefits Agency. There was further conversation concerning a change in the Applicant's working conditions on her return, which prompted the Applicant to say that she would be seeking legal advice.

On 25th August Mr Watson wrote to the Applicant. He informed her that since his appointment as Group Chief Executive he had taken on a full time personal assistant. Upon her return, the applicant would be working for Mr Hurst, and two senior managers, Messrs Wilson and Parkinson. Appropriate office accommodation had been arranged for her. He added:

"I was disappointed to hear that you expected the matter to end up in the hands of a solicitor and would be grateful if you would confirm that you will be returning to work at the end of your current sickness on the basis described above.

As your return has been postponed, you remain eligible for the benefits you have previously been receiving during your maternity leave, which you should recover direct from the state. The appropriate documents can no doubt be obtained from the local relevant benefit office.

I look forward to seeing you in the near future and strongly believe that when you return, you have an ideal opportunity to recommence your working life on a positive footing and believe that it would be a shame for this opportunity to be missed."

On 27th August the Applicant telephoned (rather than wrote, as the tribunal record in paragraph 11 of their reasons) Mrs Bishop again requesting the SSP1, which was later received and forwarded to the Benefits Agency. However, the form was incorrectly completed by the Company, and no SSP was received by the time the Applicant presented her Originating Application on 13th December 1995.

On 1st September the Applicant again saw her general practitioner, who signed her off work for a further two weeks until 15th September. When she returned to her doctor on that date her condition had not improved and he signed her off for a further six weeks. She was due to see a specialist on 25th October 1995. Neither her general practitioner nor the specialist who saw her on 25th October were able to say whether her illness was pregnancy related.

On 18th September she telephoned the Company and passed on to Mrs Bishop the fact that she had been signed off by her doctor for a further six weeks. She indicated that she would send a copy of the latest sick certificate, since the original was with the Benefits Agency.

Without waiting for the certificate Mr Watson wrote to the Applicant on 18th September in these terms:

"Dear Sue

Re Your Employment

I note that we will be receiving another sick note indicating that you cannot return to work for a further 6 weeks. As you are aware, you were due to return to work on 21st August 1995.

Under current legislation you are entitled to postpone your return on medical grounds for not more than 4 weeks. You have already gone beyond this 4 weeks and according to the law, because you have not been back to work, you employment is no longer available for you to resume. Under the law this does not constitute a dismissal but simply a termination by effect of the provisions of legislation and your illness combined. Accordingly, once you are fit to resume work I must notify you that we are required to nor are we are prepared to, hold the job open for you. We would like to make arrangements to collect the Company vehicle which you have and in the absence of any communication from you I will arrange for somebody to come and pick it up at 5.00pm on Thursday, 21st September 1995.

I wish you well with your recovery and once you are up and about again, if you wish to apply for any vacancies which we may have, you will be given sympathetic consideration."

The Industrial Tribunal found that the wording of that letter had been substantially contributed to by the Company's solicitors, whom Mr Watson had consulted.

She received that letter the following day. Thereafter she presented her complaint of unfair dismissal and unlawful sex discrimination.

By their Notice of Appearance the Company denied that the Applicant had been dismissed, relying upon the Court of Appeal decision in Kelly v Liverpool Maritime Terminals Ltd [1988] IRLR 310. The claim of sex discrimination was also denied. In the alternative it was contended that if there was a dismissal it was fair.

The tribunal decision

(1) Dismissal

The first issue for the tribunal to resolve was whether or not the Applicant had been dismissed. Having considered the submissions made by the parties, and in particular the cases of Kelly and Hilton International Hotels (UK) Ltd v Kaissi [1994] IRLR 270 (EAT; Mummery J presiding), the tribunal expressed their conclusion that she had been dismissed at paragraph 16 of the reasons thus:

"16 In relation to this issue we find that the applicant's letter of 15 August 1995 constituted a clear expression of her intention to return to work, this in response to a request from her employer asking that she confirm her intention to return. The applicant's letter of 18 August advised that she would not after all be returning to work due to ill health. This letter amounted to notification that Mrs Corfield would be taking a period of sickness absence and was not an extension of her period of maternity leave. The latter had effectively been ended by her letter of 15 August confirming her intention to return to work on 21 August. The letter from Mr Watson of 25 August gave details of the job which Mrs Corfield would have "at the end of (her) current sickness" and clearly indicated both that he recognised that her absence from work was due to illness and that he regarded her employment as continuing. We therefore find that Mrs Corfield's employment did not come to an end on 18 September 1996 and that the respondent's letter of that date amounted to a dismissal."

(2) Unfair dismissal:

The tribunal were unimpressed with the evidence given by Mr Watson, preferring that given by the Applicant. They found that the real reason for dismissal was that Mr Watson felt he was being "messed about", he had had enough and wanted the Applicant out of the Company. They found that there was a breakdown in the relationship between Mr Watson and the Applicant, but that this did not fall within any of the prescribed reasons in what was s.57(1) and (2) of the Employment Protection (Consolidation) Act 1978 and that accordingly the dismissal was unfair. Had it been necessary to go on to consider s.57(3) they would also have held the dismissal to be unfair under those provisions.

The tribunal found that the dismissal was not automatically unfair under the former s.60A of the 1978 Act (now s.99 Employment Rights Act 1996 ["ERA"]), that is for a pregnancy related reason, on the grounds that there was insufficient evidence that her illness was pregnancy related. However, they held that Mr Watson used the expiry of the period of four weeks after the notified day of return following maternity leave as an excuse to regard her employment as having terminated.

(3) Sex discrimination:

The tribunal's finding that the Company had unlawfully discriminated against the Applicant on the grounds of her sex by dismissing her, and their reasons for so finding, are contained in paragraph 21 of the reasons:

"21 The final question for us to consider is whether the applicant had been discriminated against on grounds of her sex, that is she was treated less favourably than a man would have been treated. In that respect we have had regard to the decision of the House of Lords in Webb -v- EMO Air Cargo (UK) Ltd [1994] IRLR 482. As noted above the respondent used the expiry of the period of 4 weeks after the applicant's notified day of return as an excuse to regard the applicant's employment as having been terminated. That is not a basis on which a male employee could have been dismissed. In accordance with the decision in the House of Lords in James -v- Eastleigh Borough Council [1990] IRLR 288 discrimination arises when "but for" her sex, a woman would not have been treated less favourably than a man in similar circumstances. There is no need for the applicant to prove the reason for the treatment complained of was an intention or desire to discriminate and, conversely, the absence of such an intention or desire will not excuse a person who otherwise commits an act of direct discrimination. The fact that Mr Watson did not intend to discriminate against Mrs Corfield on grounds of her sex does not therefore any defence. Because Mr Watson chose to dismiss the applicant for a reason related to her pregnancy he was treating her less favourably than a man in similar circumstances and therefore discriminated against her on grounds of her sex contrary to section 1(1)(a) of the Sex Discrimination Act 1975."

(4) Remedies:

At a subsequent remedies hearing, in respect of which there is no appeal, the tribunal awarded compensation totalling £11,372.19 in respect of both unfair dismissal and sex discrimination. That award included £3,000 compensation for injury to feelings. In summary reasons for that decision dated 4th September 1996 the tribunal set out, at paragraph 3, the factors which they took into account at arriving at their award for injury to feelings. They included the finding that the Company used legislation that had been designed to protect the Applicant as a pretext for her dismissal.

The Appeal

Mr Duggan, on behalf of the Company, takes three points in support of this appeal:

(1) that the Industrial Tribunal erred in finding that the Applicant had been dismissed. He contends that the statutory regime is clear. Under what is now s.82 of the ERA an employee loses her right to return to work if she does not physically return on the notified day, here 21st August 1995, or within four weeks thereafter if the return has been postponed due to illness under s.82(3)(a). He relies on Kelly and the recent decision of the Employment Appeal Tribunal in Crees v Royal London Insurance [1997] IRLR 85. He submits that the tribunal was wrong to find, in paragraph 16 of their reasons, that the Applicant's letter of 18th August amounted to notification that she would be taking a period of sick absence, rather than postponing her return to work following maternity leave.

(2) that in the absence of a dismissal there could be no sex discrimination here under s.1(1)(a) of the Sex Discrimination Act 1975 ["SDA"] read with s.6(2)(b).

(3) alternatively, that if there was a dismissal, the tribunal reached inconsistent findings. In paragraph 20 of the reasons they found that the reason for dismissal was not pregnancy related within the meaning of what is now s.99 of the ERA, and yet in paragraph 21 they held that Mr Watson chose to dismiss the applicant for a reason related to her pregnancy and thus he treated her less favourably than a man in similar circumstances. In this connection he relied on the case of Brown v Rentokil [1995] IRLR 211 (CS).

Statutory maternity leave

As this Industrial Tribunal observed, the statutory regime relating to maternity leave is designed to protect women who wish to return to work following the birth of a child. It is designed to reflect the changes in European Community Law effected by the Pregnant Workers Directive (92/85/EEC). Whether or not that aim has been fully achieved does not arise for determination in this case.

The right to maternity leave is contained within s.71-98 of ERA. We are particularly concerned with the right to return to work following maternity leave. S.79 provides that a qualified employee (the Applicant in this case) has the right to return to work at any time during the period beginning at the end of her maternity leave and ending 29 weeks after the beginning of the week in which childbirth occurs. Here, the Applicant's notified date of return, 21st August 1995, fell within that period.

By s.82 the employee must given written notice of her return date. She may postpone, once only, her return to work for a period of up to four weeks where she is incapable of work through certified illness.

The statutory requirements have been strictly construed. Thus in Kelly, a case followed in Crees, failure to physically return within the four week period following the notified day of return will result in the employee losing her statutory right to return. She will then be thrown back on her contractual rights, if any.

Contractual position

The critical question in every case, where the statutory right to return has been lost as here, is whether the contract of employment ends on expiry of the statutory right to return, or whether it continues until determined by either party or by agreement.

The answer will depend on the facts.

In Kelly the facts were that the employee, a part-time typist, informed the employer in November 1983 that she was expecting a baby on 23rd February 1984. The child was in fact born on that date. It was agreed that she would take maternity leave on the statutory terms. Maternity leave was to be begin on 5th December 1983 and the employee would return to work approximately 29 weeks after the birth.

The pregnancy exacerbated a pre-existing back injury and she was unable to return at the anticipated time. She wrote to the company on 19th August 1994 informing the commercial manager, Mr Burns, of her medical condition and enclosed a four week doctor's certificate. Mr Burns took no action on receiving that letter. Subsequently the employee sent three further medical certificates, the last one dated 6th December 1984. Following receipt of that last certificate Mr Burns finally responded by letter dated 17th December 1984 in which he informed the employee that in view of her continued absence, and the company's obligation to offer employment at the termination of her maternity leave having ceased, she would not be permitted to resume her employment.

An Industrial Tribunal dismissed her complaint of unfair dismissal. It held that there had been no dismissal. That decision was upheld both by the Employment Appeal Tribunal and the Court of Appeal.

The Court of Appeal held that the employee had lost her statutory right to return. Further, it held that submission of sick certificates was not an unequivocal assertion by the employee of her right to sick leave; it was open to the employer to believe that she was expressing a hope that she would be re-employed following a return to health. Nor was the employer estopped from asserting that her employment had ceased by silence upon receipt of the sick certificate submitted. On the facts, there was no express or implied agreement between the parties that the contract of employment would continue after expiry of her statutory right to return to work.

In Crees the contract of employment expressly provided that the employee forfeited her right to return in the event that she failed to comply with the statutory notice provisions, whereupon the contract would terminate upon expiry of the maternity pay period.

Mrs Crees gave notice that she intended to return to work at the end of her period of maternity absence. She was prevented from so doing by illness. She wrote to the employer accordingly. The employer replied informing her of her right to postpone her return for four weeks. She was unable to return within that period. She was informed that in accordance with the contractual terms her employment had terminated.

The Industrial Tribunal found that there was no dismissal. That decision was upheld by the Employment Appeal Tribunal. She could not rely upon the statutory right to return; the contract made clear that, by agreement, it was terminated in the circumstances.

Having reviewed the authorities, Judge Hull QC summarised the position in this way at paragraph 24:

"... when an employee had lost her right to return to work any contract of employment is emptied of all useful content and as a matter of common sense as well as law comes to an end, in the absence of express agreement to the contrary."

In Kaissi the employee became pregnant in 1990. Before her maternity leave began on 14th September 1990 she had been absent from work due to back problems and received sick pay during September and October 1990. On 30th October her baby was born. On 2nd November the employer wrote asking for confirmation in writing of the employee's intention to return to work. She did not receive that letter. Statutory maternity pay was paid until 16th January 1991. On 20th February the employee wrote, with the assistance of her daughter, to say that she would be unable to return to work due to pregnancy related illness, enclosing a medical certificate for one month. On 25th February the employer wrote informing her that her employment had been terminated. The Employment Appeal Tribunal noted that the 29 week period following the week of confinement in which she had a right to return to work expired in mid-May 1991.

On her complaint of unfair dismissal the Industrial Tribunal held that she had been dismissed on 25th February 1991. It found that although she could not rely upon the statutory right to return, proper notice not having been given, she had remained an employee of the company until 25th February 1991. She was in the position of a person who was off sick with the tacit permission of the employer.

Having considered the authorities, including Kelly, Mummery J summarised the Employment Appeal Tribunal's conclusions in paragraph 23 of the report. The Appeal Tribunal found that the employee was on sick leave and in receipt of sick pay before the start of her maternity leave and continued to receive sick pay until the end of October 1990. That fact was consistent with the continuance of the contract, not its termination. Although she had no statutory right to return, that did not of itself terminate the contract. A contract may continue to exist during maternity leave, although the obligations to perform the work and to pay wages are suspended, unless it is terminated by agreement, resignation or dismissal. There was no express or implied agreement to terminate the contract between 2nd November 1990 and 25th February 1991. The letter of 25th February 1991 was a dismissal of the employee.

The present case

In our judgment this Industrial Tribunal was entitled to conclude that, the Applicant's letter of 18th August 1995 was not a notification of the postponement of the date of return, but, unlike the facts in Kelly, was an assertion that she remained an employee who would be absent from work through sickness, and claiming SSP as an employee. The Company did not demur from that contention; on the contrary, Mr Watson made it clear in his letter dated 25th August that the Applicant would be returning to work following her current sickness. Mrs Bishop acknowledged the Applicant's claim for SSP by returning the part completed, albeit incorrectly completed, form SSP1 to the Applicant. These acts on the part of the Company were evidence of an intention to continue the contract, not to treat it as being at an end at the expiry of four weeks after the notified day of return.

Unlike the facts in Crees, there was here no agreement under the contract that it would terminate on expiry of the statutory right to return. Clause 20 of the contract simply provided:

"20 MATERNITY

Maternity rights in accordance with legislation from time to time in force will be afforded to all pregnant employees."

What happened, as the tribunal found, was that Mr Watson lost patience upon being informed on 18th September that the Applicant would be submitting a further six weeks sick certificate. He was advised, by the Company's solicitors, that on the basis of Kelly the Company could treat the employment as at an end. He used the statutory provisions designed to protect the employee as an excuse for getting rid of her.

Accordingly we reject Mr Duggan's first submission that the tribunal erred in finding that the Company's letter of 18th September was a letter of dismissal.

Sex discrimination

Mr Duggan's first point, that there was no dismissal, necessarily falls. That leaves his further argument based on inconsistent findings by the tribunal.

In paragraph 20 of their reasons the tribunal found that there was no evidence that the Applicant's illness was pregnancy related. That is a reference to the inconclusive opinions given by her doctors. Further they found that the principal reason for dismissal was the breakdown in the relationship between the Applicant and Mr Watson. The expiry of the period of four weeks after the Applicant's notified day of return was used by Mr Watson as an excuse for terminating the contract. On these findings the tribunal concluded that the reason or principal reason for dismissal was not related to her pregnancy.

There is no cross-appeal against that finding and consequently we are not required to consider whether it was correctly made as a matter of law.

When turning to the question of sex discrimination the Industrial Tribunal concluded paragraph 21 by stating:

"Because Mr Watson chose to dismissed the applicant for a reason related to her pregnancy he was treating her less favourably than a man in similar circumstances and therefore discriminated against her on grounds of her sex contrary to section 1(1)(a) of the Sex Discrimination Act 1975."

Are not those findings necessarily mutually inconsistent, asks Mr Duggan?

Further, he argues that the tribunal has failed to make a necessary comparison with a man for the purposes of the SDA. Had they done so, they would have found, following Brown v Rentokil, that just as a woman dismissed as a result of absence due to pregnancy related illness was treated no less favourably than a man absent through long-term illness, so, a woman dismissed because the relationship between herself and her employer had broken down was treated no less favourably than a man whose relationship had similarly broken down, even if the excuse for dismissing her, the expiry of the statutory maternity leave period, was gender specific.

We confess that we find the approach of the Court of Session in Brown v Rentokil a little surprising in the light of second House of Lords opinion given in Webb v EMO [1995] ICR 1021, which had not been delivered when Brown was decided in the Court of Session. We understand that Brown may itself be considered by the House of Lords. However, we find it possible to distinguish that case on its facts. Here, the Applicant was not dismissed by reason of pregnancy related illness. The Industrial Tribunal specifically found that that was not the reason for dismissal in view of the inconclusive medical evidence.

In our judgment the true analysis of the Industrial Tribunal's reasoning is this. We compare the case of the Applicant, dismissed because of the breakdown in relations between herself and Mr Watson, with a man whose relationship has similarly broken down. Whereas in the Applicant's case the employer used as an excuse for terminating the employment a fact which applied only to a woman, the expiry of the four week period following maternity leave, that excuse would not have been open to the employer in the case of the male comparator. He would not have been dismissed in similar circumstances.

Accordingly, the Applicant was treated less favourably on the grounds of her sex in that she was dismissed in circumstances where a man would not have been dismissed. That, we think, is the significance of the tribunal's observation in paragraph 21:

"That is not a basis on which a male employee could have been dismissed."

Viewed in that way the tribunal reached a permissible finding in concluding that the complaint of sex discrimination was made out. Although the principal reason for dismissal was unrelated to her sex, the means by which the employer sought to affect the termination of employment, misuse of the statutory maternity leave protection afforded to women, was attributable solely to her sex. It is a variation on the facts of Rees v Apollo Watch Repairs [1996] ICR 466, where the immediate cause of dismissal was a gender neutral reason, but the underlying reason was the employee's absence on maternity leave. Here, the principle reason for dismissal was gender neutral as the tribunal found, the breakdown in relations between the Applicant and Mr Watson, but the stated method used to terminate the employment relied upon the statutory maternity provisions, which are gender specific and could not be relied upon in the case of a man.

For these reasons we shall dismiss this appeal.