Appeal No.	 EAT/1228/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 December 2001

Before
HIS HONOUR JUDGE D M LEVY QC
LORD GLADWIN OF CLEE CBE JP
MR T C THOMAS CBE

MRS J LANGLEY	APPELLANT

ESSEX RIVERS HEALTHCARE NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS S GARNER
(of Counsel)
Messrs Stanley Tee & Co
Solicitors
38 Rayne Road
Braintree
Essex
CM7 2QP	
For the Respondent	MR A SENDALL
(of Counsel)
Messrs Birkett Long
Solicitors
Essex House
42 Crouch Street
Colchester
Essex
CO3 3HH	

HIS HONOUR JUDGE D M LEVY QC

1	The appeal by Mrs Jane Langley arises in the following circumstances.  Mrs Langley was employed for some time by the Respondent, the Essex Rivers Healthcare NHS Trust.  Mrs Langley went on maternity leave.  After she had had her baby she began to suffer, as often alas happens, from postnatal depression.  She brought that to the attention of her employers, some time after it had been diagnosed, in November 1998.  Her doctor had first diagnosed it on 
22 October 1998.  

2	Mrs Langley brought proceedings by an IT1 dated 22 February 2000 claiming unfair dismissal, redundancy pay, breach of contract, disability discrimination, health and safety and sex discrimination.  There was a notice of appearance on 31 March 2000.  There was a hearing before a Tribunal sitting at Bury St Edmonds on 24 and 25 July 2000.  The panel discussed the position on 31 July 2000 and their decision was promulgated on 21 August 2000.  Their decision unanimously was that:

“1  The applicant was not disabled within the meaning of the Disability Discrimination Act 1995 and her claim is dismissed.
2  The applicant was not dismissed for an automatically unfair reason pursuant to the provisions of section 99 of the Employment Rights Act 1996.
3  The applicant was not otherwise unfairly dismissed.
4  The applicant’s claim for breach of contract is dismissed.
5  The applicant’s claims for redundancy and for unfair dismissal arising from health and safety allegations are dismissed on withdrawal.”

At the hearing Mrs Langley was represented by counsel.  The Respondent was represented by a solicitor.  Counsel who represented her at the hearing was, we think, responsible for a Notice of Appeal sent to this Tribunal dated 26 September 2000.  The matter came before a panel headed by Mr Recorder Langstaff QC on 15 March 2000.  Allowing the matter to come to a Full Hearing he said this:

“Two issues are raised by the Notice of Appeal.  We think each of those are arguable.  On one reading, and we shall say no more at this stage, the Caledonia Bureau case [that is a reference to a Scottish decision of the EAT Caledonia Bureau Investment & Property v Caffrey [1998] IRLR page 110] does not deal with a situation in which a pregnancy related illness arises outside the period of maternity leave or after return to work.
So far as the second ground is concerned we understand that basis of the argument to be that because a man could by definition not suffer pregnancy related illness it will constitute sex discrimination for a woman to be subject to dismissal for such an illness, because a man would not be in that position and would not then be dismissed
This raises difficult issues.  We are sceptical of the grounds of success but we can see that the point is arguable.  Some assistance may have to be derived from the forthcoming Court of Appeal case in Pearce v Governors of Mayfield School.”

Happily perhaps for us that second ground of appeal has not been argued and has been withdrawn.  That has left us with the first ground of appeal.  Miss Garner appears today in place of Mr McDonald, who, submitted the skeleton argument.  

3	Really, what the appeal amounts to is whether the Tribunal was right in paragraphs 69 and 70 of its carefully reasoned judgment when it says this:

“69	We ask ourselves next whether the applicant can bring herself within section 99 of the Employment Rights Act 1996. The answer to that in our view is straightforward; she cannot.  The applicant’s illness postnatal depression, is a matter of causation linked to her pregnancy.  However, the authorities are clear.  Caledonia Bureau Investment & Property v Caffrey [1998] IRLR 110 hold that section 99(1)(a) covers the position where a pregnancy related illness arises during the period of maternity leave, whether extended or not, and is the direct cause of dismissal at a later date.  That case covers the situation where someone is dismissed after a period of maternity leave has expired provided the illness arises during the maternity leave period.  The applicant’s illness did not arise during maternity leave.  She cannot bring herself within the Caffrey case.
70	Further, it is clear outside the period of maternity leave laid down by national law, a woman is not protected under the Equal Treatment Directive against dismissal on grounds of periods of absence due to illness originating in pregnancy per se.  There must be evidence that a man who is absent due to illness for a similar length of time and is unable to return to his post on his own admission would have been treated more favourably than the applicant.  There is no such evidence.  Mr McDonald has not suggested otherwise.”

The Tribunal then go on to discuss Section 98 of the Employment Rights Act 1996.  The Tribunal does not refer to Section 99(3)(a) of the Employment Rights Act 1996 which reads:

“3	An employee who is dismissed shall also be regarded for the purposes of this Part as unfairly dismissed if – 
(a)	before the end of her maternity leave, she gave to her employer a certificate from a registered medical practitioner stating that by reason of disease or bodily or mental disablement she would be incapable of work after the end of that period.” 

4	The facts of the Caffrey case were that the certificate was given on the last date of an extended maternity period and that case it seems to us applies to a certificate specifically served on such a date.  Here the certificate was given well outside the period.  In our judgment the Tribunal was right in paragraph 70.  It is unnecessary to consider further whether the words of Section 99(1)(a) should be extended.  On the facts of this case they should not be.  In the circumstances we do not accept the invitation which may have been offered to us to say that we do not agree with the decision in Caledonia v Caffrey.  We will simply say that in our judgment this appeal fails.  We would thank both counsel for the interesting submissions they have put before us today.