United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	TESS GILL (of Counsel) Messrs Bindman & Partners Solicitors 275 Gray's Inn Road London WC1X 8OF
For the Respondents	PAUL NICHOLLS (of Counsel) Messrs Cameron McKenna Solicitors Mitre House 160 Aldersgate Street London EC1A 4DD


 


JUDGE PETER CLARK: This is an appeal by Mrs Marion Halfpenny, the applicant before the Manchester Industrial Tribunal sitting on 17th July 1996, against that tribunal's decision to dismiss her complaints of unfair dismissal, wrongful dismissal and unlawful sex discrimination against her former employer, the respondent, IGE Medical Systems Ltd. Extended reasons for that decision are dated 3rd September 1996.

The facts

The appellant commenced employment with the respondent on 6th June 1988. Her letter of appointment dated 29th April 1988 describes her position as Service Controller. Later she became the regional administrator and at the relevant time was the "lynch-pin" of the Sale office, being the only full-time employee based at that office.

The letter of appointment, which she signed on 6th May 1988, enclosed a statement of her terms and conditions of employment. There is no specific mention of maternity rights in the contractual documentation. She was, at the relevant time, entitled to 30 weeks paid sick leave in any 12 month period under the contract.

In August 1994 she commenced a period of paid sick leave for reasons connected with her then pregnancy. She submitted sick notes from her general practitioner which referred to "complications of pregnancy". She was not fit to return to work before the commencement of her statutory maternity leave, which was triggered on 6th March 1995, six weeks before the expected week of confinement. On 6th February 1995 she had given the respondent written notice that she intended to exercise her right to return to work.

Her baby was born on 5th April 1995.

Thereafter she remained on extended maternity leave, having by then completed more than two years continuous employment. Her maternity pay continued for 18 weeks from 6th March 1995 until 10th July 1995.

The first working day after the expiry of her 29 weeks extended maternity leave commencing with the birth was 30th October 1995.

On 23rd September 1995 she notified the respondent that she intended to return to work on 29th October. She wrote again on 9th October, stating that she was not sure if her return date was 23rd or 29th October. By letter dated 12th October the respondent indicated that she should return to work on 30th October.

On 13th October the applicant wrote to the respondent informing them that she was under the doctor for post-natal depression and feared that she would be delayed from returning to work on the due date. She enclosed confirmatory general practitioner's certificates.

On 23rd October the respondent replied in these terms:

"With regard to your return to work, you have the right to extend your leave by a maximum of 4 weeks for medical reasons supported by a Doctor's certificate. You still retain your right to return to work in these circumstances up until 27 November 1995. Your salary will be reinstated with effect from your actual return date, which according to your current Doctor's certificate is expected to be 13 November 1995."

On 1st November the appellant wrote expressing her concern that she was unable to give an exact date for her return to work especially if it went beyond 27th November. She asked what effect it would have on her job if that were to be the case.

On 13th November the respondent replied:

"As stated in my previous letter, you are legally entitled to extend your maternity leave by 4 weeks for medical reasons which takes you to 27 November 1995. The Company is not legally obliged to hold your job open after this date, and has regretfully taken the decision that it is unable to do so."

On 24th November the appellant wrote:

"Whilst I realize that my maternity leave could be only extended by 4 weeks, I hoped the company would be more lenient in these exceptional circumstances. I am still under my doctor for treatment and hope that I will recover as soon as possible.

I would be grateful if you could write to me with your comments."

She submitted a four weeks certificate citing "depression" dated 7th November 1995.

On 29th November 1995 the respondent replied:

"You have been absent from work since 30 August 1994 taking in to account your sick leave prior to maternity leave. As the Company has already fulfilled it's legal obligation by extending you maternity leave by 4 weeks on medical grounds, we feel unable to prolong your leave for an additional period of time, and regrettably the contents of our letter dated 13 November 1995 will still stand."

Thereafter further correspondence was exchanged and a meeting was held on 18th January 1996. The upshot was that the respondent declined to take the appellant back into their employment.

The Complaint

By an Originating Application presented to the Central Office of Industrial Tribunals on 2nd February 1996 the appellant complained of sex discrimination, unfair dismissal and breach of contract. She alleged that the respondent had dismissed her, and that by not allowing her sick leave after 27th November 1995 they had discriminated against her on grounds of her sex.

By their Notice of Appearance the respondent contended that they had complied with the statutory requirements in relation to her maternity leave.; that she had not been dismissed, whether unfairly or in breach of contract or at all, and denied that they had unlawfully discriminated against her.

It was common ground between the parties that her employment terminated on 27th November 1995.

Maternity rights

Before turning to the Industrial Tribunal decision and the particular arguments in this appeal we should say something about the law on this topic. It has become too complicated. We remind ourselves that the practical application of, for example, the right to return to work after pregnancy or confinement, is an important area where employers and their female staff need to know where they stand. When a dispute arises, Industrial Tribunals need to apply the law to the facts in a given case with a degree of certainty. Lack of certainty leads to an increasing number of appeals. Decisions on appeal lead to real or imagined differences in approach at the appellate stage, which in turn fuel uncertainly below. Such a spiral is a recipe for disaster. Is it possible to stand back from the minutiae of textual construction of the authorities and the legislation to advance a practical, broad approach to the facts of this case? We think that it is.

Difficulties arise in this field for two main reasons. The first is that the statutory provisions themselves are, in the words of Browne-Wilkinson J., of "inordinate complexity exceeding the worst excesses of a taxing statute". Lavery v Plessey Telecommunication Ltd [1982] ICR 373, 379E. Secondly, there is an uncomfortable meshing of purely statutory rights with the contractual position. We shall now consider the various permutations.

Formal contractual rights

The contract of employment may contain express terms as to maternity rights. These cannot be less favourable to the employee than her statutory rights, but may be more favourable, in which case she may rely on those which are most favourable to her. Employment Rights Act 1995 ["ERA"] s.85(1).

In this case the express terms of the contract are silent as to maternity rights, so the Industrial Tribunal found. That is plain from a reading of the contractual documentation which was before the Industrial Tribunal.

Before us Ms Gill, without objection, produced a document generated by the respondent's Human Resources Department and sent to the appellant during her absence from work. It is headed "Maternity Leave and Maternity Pay". It was not put before the Industrial Tribunal. It appears to be an internal personnel document designed to explain the employer's policy in relation to maternity leave. We have not treated it as a contractual document, extending the appellant's statutory rights. Accordingly, we turn to those statutory rights.

The statutory right to return

This is now contained in ERA.

We shall not burden this judgment with the various statutory requirements which the appellant was required to comply with in order to exercise her statutory right to return to work following her confinement. Quite simply, she cleared all the hurdles, save for the last one. Having first given notice of her proposed return to work (s.82(1)) and exercised her right to postpone her return for four weeks after her notified dated of return (s.82(2)), she was then prevented from physically returning on that date by reason of ill-health caused by post-natal depression. She had no further right to postpone her return (s.82(5)). The respondent would not agree to any further extension of time for returning. What is the position?

(1) it is clear on the current state of the authorities that an employee wishing to exercise her statutory right to return to work must physically do so on the notified date, here 27th November 1995. See Kelly v Liverpool Maritime Terminals Ltd [1988] IRLR 310 Sending a sick note, or even attending at her place of work for the purpose of handing in a sick note on the notified day of return, will not preserve her right to resume work at a later date. Kwik Save Stores Ltd v Greaves [1997] IRLR 268.

(2) the consequence is that she cannot claim a deemed dismissal under s.96 because she has not properly exercised the right to return to work and it cannot be said that the employer has not permitted her return to work. Greaves.

(3) can she nevertheless claim that she has been dismissed under s.95 (the 'ordinary' dismissal provision) in circumstances where her employer refuses to grant her sick leave and thereby return to work when she is fit to do so? In our view the short answer is, not if she is able to rely solely on her statutory right to return. In some cases an express or implied agreement may be found to exist between the parties, whereby notwithstanding that the appellant has lost her statutory right to return, the employer has agreed to continue the employment. In these circumstances the contract as continued may be terminated by dismissal. See Hilton International Hotels (UK) Ltd v Kaissi [1994] IRLR 270. However, absent such express or implied agreement there will be no dismissal under s.95. Lavery v Plessey Telecommunications Ltd [1983] ICR 534; Dowuona v John Lewis PLC [1987] 788.

(4) what happens to the contract of employment? We think that the correct analysis is to be found in McKnight v Addlestones (Jewellers) Ltd [1984] IRLR 454 (N.I.C.A.). Absent any express or implied agreement to continue the contract of employment, as in Kaissi, the contract will continue to subsist after the employee goes on maternity leave, but with the respective obligations thereunder suspended, on the mutual understanding that those obligations will be revived, and the contract will continue, if the employee effectively exercises her right to return. If she fails to exercise that right, the contract comes to an end. Whether that is described as "automatic termination", see McKnight paragraph 8, termination by operation of law or because it is "emptied of all useful content", see Crees v Royal London Insurance [1997] IRLR 85, paragraph 24, is a matter of semantics. The simple fact is that the contract remains on foot solely for the purposes of permitting the employee to revive it when she exercises her statutory right to return. If she does not do so, it comes to an end by implied agreement, not by dismissal.

The Appeal

Underpinning the Industrial Tribunal's conclusion that each of the appellant's three claims fail is the finding that she was not dismissed.

As to that finding, the tribunal reasoned that the contract of employment came to an end on 10th July 1995 when maternity pay ceased. Accordingly, there could be no dismissal under s.95, or at Common Law, on 27th November 1995, and there was no 'special' dismissal under s.96. It did so "on the facts" and by applying the Employment Appeal Tribunal's approach in Crouch v Kidsons Impey [1996] IRLR 79.

Ms Gill attacks that finding on the grounds, first, that it was not argued before the tribunal that the contract terminated on cessation of maternity pay. That is correct. The case proceeded on both sides on the basis that the contract continued until 27th November 1995. Secondly, she submits that the circumstances in Crouch, where the employee left without exercising her statutory right to return, differ materially from the facts in this case. Again, we accept that submission.

However, it is still necessary for the appellant to show that the contract was terminated by the respondent on or after 27th November 1995 in circumstances amounting to a dismissal.

Ms Gill relies upon the general principles of breach and acceptance to be found in London Transport Executive v Clarke [1981] ICR 355. The appellant was in breach of contract by failing to return to work on 27th November 1995; the respondent accepted that breach by refusing to allow her to return thereafter. She was therefore dismissed for all purposes.

We confess to being initially attracted to that analysis. However, on reflection, we find that we must reject it.

Applying the principles earlier set out in this judgment we feel bound to conclude, on authority, that assuming the contract continued until 27th November 1995 it then came to an end other than by dismissal. It remained on foot solely for the purpose of allowing the appellant to exercise her statutory right to return. When she failed to do so, and in the absence of express of implied agreement to extend it, it came to an end not by any act of termination by the respondent but by the appellant's failure to exercise her right to return. To find otherwise would be to render the respondent liable to the appellant for complying strictly with their statutory obligations. That cannot be right.

It may be said that such a result is a harsh one; the appellant wished to return but was prevented from doing so by illness and is left with no redress. However, that is the inevitable effect of the statutory provisions. In particular, she is permitted only one postponement, for a period of up to four weeks, of her notified date of return for medical reasons. That is the cut-off imposed by Parliament. The contentions advanced on behalf of the appellant in this case are designed to circumvent that statutory regime. That is not permissible.

Accordingly, for the reasons which we have given in so far as they differ from those of the Industrial Tribunal, we uphold the tribunal's conclusion and dismiss this appeal.