United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR I MORTON (Solicitor) Merseyside Trade Union Community & Unemployed Resource Centre 24 Hardman Street Liverpool L1 9AX
For the Respondents	MR T RESTRICK (of Counsel) Messrs Dibb Lupton Alsop Solicitors India Buildings Water Street Liverpool L2 ONH


 


MR JUSTICE HOLLAND We have before us an unhappy matter reflecting legislation of notorious complexity, which appertains to an area of human relationships not readily assisted by complexity. The key to the matter is the legislative structure provided by the Employment Rights Act 1996 with respect to maternity rights. It is necessary to cite immediately certain of the provisions of that Act. Section 71 (1) and (2):

"(1) An employee who is absent from work at any time during her maternity leave period is ... entitled to the benefit of the terms and conditions of employment which would have been applicable to her if she had not been absent (and had not been pregnant or given birth to a child).

(2) Subsection (1) does not confer any entitlement to remuneration."

Section 79 (1):

"(1) An employee who -

(a) has the right conferred by section 71, and

(b) has, at the beginning of the eleventh week before the expected week of childbirth, been continuously employed for a period of not less than two years,

also has the right to return to work at any time during the period beginning at the end of her maternity leave period and ending twenty-nine weeks after the beginning of the week in which childbirth occurs."

Section 82 (1), (3), (4) and (5):

"(1) An employee shall exercise the right conferred by section 79 by giving written notice to the employer (who may be her employer before the end of her maternity leave period or a successor of his) at least twenty-one days before the day on which she proposes to return of her proposal to return on that day (the 'notified day of return').

(3) An employee to whom subsection (4) applies may -

(a) postpone her return to work until a date not more than four weeks after the notified day of return (even if that date falls after the end of the period of twenty-nine weeks beginning with the week in which childbirth occurred),

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 more than four weeks after the end of that period of twenty-nine weeks.

(4) This subsection applies to an employee if she gives to her employer, before the notified day of return (or the end of the period of twenty-nine weeks), 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 (or at the end of that period).

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

Turning from that statutory structure to the facts, they are as follows. On 10 September 1990 the Applicant, Ms Alison Canavan, entered employment with the Respondents, Greenberg Glass Ltd, as a cost clerk. In the course of the latter part of 1996 she became pregnant and on 17 January 1997, she wrote a letter to her employers in these terms:

"I am writing to inform you that I will be starting maternity leave on Thursday 13 February 1997, 7 weeks before the estimated delivery date of my baby on 3 April 1997. I intend to return to work 29 weeks after the baby is born.

I have still to take 4 days holidays and would like to begin these on Friday 7 February 1997. I have enclosed a holiday form to cover this."

On 13 February 1997 she started her maternity leave and, in the event, the baby was born on 16 April. Given that as the date of birth, the twenty-nine week period prescribed by statute, terminated on 3 November.

It was her case that on 10 October 1997 she wrote a letter to her employers in these terms:

"I am writing to inform you of my present situation regarding my return to work. I am due to return on Monday 3 November 1997, but as I am being treated for post-natal depression my GP feels I am not, as yet, ready to work. He has told me that he will issue a panel note the week before the 3 November which I will forward to yourself as near to this date as possible. I am continuing to be assessed by my GP each month and I will contact you when there is a change in my situation."

It is to be noted that the Respondents denied ever receiving that letter. It is however, common ground that on 31 October she submitted to the Respondents a certificate from her GP which asserted that she should refrain from working for an ensuing period of four weeks. On 28 November she submitted a further certificate from her GP. This time it was to the effect that she should refrain from work for a further two weeks.

On 3 December she attended at her place of work and there received a hand-delivered letter of the same date. This read:

"Thank you for your letter of 28 November enclosing a further doctor's note.

Unfortunately, as you have not complied with the statutory requirement to give the Company written notice of your intended date of return to work following extended maternity absence, I must inform you that your employment with the Company has terminated.

In any event, even if you had provided us with the required written notice of the intended date of return, you would be entitled to postpone your return on only one occasion by a maximum of 4 weeks. Your sick note, dated 28 November, would therefore not entitle you to postpone your return to work any further.

As your employment with the Company has terminated, I am afraid that you have no entitlement to sick pay.

I should like to thank you for your services to the Company and hope that all is going well for you and the baby."

She initiated an appeal against that decision and by a letter of 22 December, that appeal was rejected.

It was in those circumstances that, by way of an IT1 of 2 March 1998, she made a complaint alleging, amongst other things, unfair dismissal and thereby called upon the Tribunal to make a careful analysis of the facts in the light of the legislation. The essential issue that thus emerged was as to whether her employment had been appropriately terminated, in that she had failed to avail herself of the protection provided by the Act, or whether the Act had served to give her protection so that she had been unfairly dismissed.

In the event, by a majority, the Employment Tribunal sitting at Liverpool on 24 April 1998 decided that she had failed to avail herself of the Act, so that she had not been unfairly dismissed.

It was in those circumstances that an appeal was mounted to this Tribunal, the essential thrust of the appeal being that the Employment Tribunal had misdirected itself as to the impact of section 82 upon the facts set out in this judgment.

For our part we have sought to construe section 82 and apply its terms to the facts. We acknowledge at the outset that this is not an easy task, having regard to the way in which it has been drafted. Our analysis of the matter flows as follows.

It starts on the premise that there was no notification given by Ms Canavan to the Respondents in pursuant to section 82 (1), that is, there was no notification of the day of return. We start on that premise for two reasons. First, there was a dispute as to whether the letter of 10 October was ever sent and that dispute was not, in the event, resolved by the Employment Tribunal. But second, on behalf of Ms Canavan, Mr Morton does not seek to contend that that letter served to give the notification as specified in section 82 (1).

Turning then to the section on that premise, we go straight to subsection (4). In our judgment, application of subsection (4) to the facts of this matter ends with this proposition: that Ms Canavan did give to her employers, before the end of the period of twenty-nine weeks, a certificate from a registered medical practitioner, stating that by reason of mental disablement she would be incapable of work at the end of that period.

On that basis, having satisfied subsection (4), she is then entitled to invite consideration of her position by reference to subsection (3). As to that, and referring particularly to paragraph (b), we are satisfied that she could extend the time during which she could properly exercise her right to notify a return date, in accordance with section 82 (1) effective to achieve return to work not more than four weeks after the period of twenty-nine weeks.

The two essential points however arise. In order to avail herself of this facility, it was important, first, that the notice she gave should be at least twenty-one days (see subsection 1) and the notice should be for 3 December or an earlier date, that is, for a date that was not more than four weeks after the end of the period of twenty-nine weeks.

Turning from this analysis back to the facts, the problem is that she did neither. Having submitted to the employers the medical certificate of 28 October, she did not thereafter give, or indeed seek to give, a notice by reference to subsection (1) and in those circumstances, she did not avail herself of the facility given to her by subsection (3).

The only matter that can be then raised is the fact of the second certificate, that is, the certificate of 28 November. There are two problems as to that. First, there is nothing in the structure that allows for the submission of a second certificate but, more importantly, by subsection (5) she is prevented from availing herself of the subsection (3) concession on more than one occasion.

Thus it is that by reference to section 82 and starting on the premise that she had never availed herself of subsection (1), then as we see it, her case simply cannot be sustained and the termination of her employment was not in breach of her maternity rights, as provided for by this Act.

We have considered, by way of an alternative, the position that would flow were one able to find, first, that the letter of 10 October was sent and second, that it did serve to notify a day of return, that is, it notified 3 November as the day of return. On that premise there has to be a fresh perusal of section 82, but this similarly serves to show that she cannot complain thereafter of having her employment terminated. The problem there is that by subsection (3), paragraph (a), she can only postpone her return to work until a date not more than four weeks after the notified day of return and, in the event, as the facts show, she did not return before 3 December and indeed proposed to postpone her return to work to a date subsequent to such.

Thus, even were one able to look at the matter on the basis of the letter of 10 October and on the basis of a charitable construction of it, her position would in no way improve. In our judgment, the decision of the majority of the Employment Tribunal is plainly correct. It follows that this appeal is unarguable and has to be dismissed.

We conclude by drawing again attention to the Byzantine nature of this part of the Act, and of the difficulty that any Tribunal has in construing it, which difficulty must be the greater if one is attempting to apply this part of the law when at the place of work. We comfort ourselves that in the latter forum there is perhaps more often give and take, designed to retain good employment, on the one hand, and the services of a valued employee on the other hand.

Thus it is that some of the rigidity probably does not apply in many instances, but when it does apply, as here, it is a matter of extreme regret that the structure of the section is as Parliament has provided.