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|Judgments - Halfpenny v. Ige Medical Systems Limited
HOUSE OF LORDS
Lord Hope of Craighead Lord Mackay of Clashfern Lord Goff of Chieveley Lord Browne-Wilkinson Lord Clyde
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
IGE MEDICAL SYSTEMS LIMITED
ON 14 DECEMBER 2000
LORD HOPE OF CRAIGHEAD
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Browne-Wilkinson and Lord Clyde. I agree with them, and for the reasons which they have given I would allow the appeal. I would remit to the Employment Tribunal the question whether Mrs Halfpenny was unfairly dismissed and dismiss her claim for damages for wrongful dismissal and her claim under the Sex Discrimination Act 1975.
LORD MACKAY OF CLASHFERN
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Browne-Wilkinson and Lord Clyde. I agree with them, and for the reasons which they have given I would allow the appeal.
LORD GOFF OF CHIEVELEY
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Browne-Wilkinson and Lord Clyde. I agree with them, and for the reasons that they have given I would allow the appeal.
This appeal raises a question on the statutory rights of a woman to return to work after childbirth. At the relevant time, the statutory provisions regulating maternity leave and the right to return to work were contained in Part III of the Employment Protection (Consolidation) Act 1978 as substituted by the Trade Union Reform and Employment Rights Act 1993. Those provisions are largely reproduced verbatim in sections 71 to 85 of the Employment Rights Act 1996, but since Counsel argued the case on the basis of the numbering in the 1978 Act (as amended), I will refer to those provisions. The whole system in issue in the present case has now been abandoned and the relevant maternity rights (which are different) are now contained in the Employment Relations Act 1999.
Under the system in force at the relevant time, maternity rights were of two kinds, viz. maternity leave and the right to return to work. Maternity leave was the right enjoyed by all women employees with one year's service or more to be "absent from work" at any time during the maternity leave period of 14 weeks: sections 33 to 36. The provisions of her contract of employment (save as to pay) continued in force during the leave period (section 33(1)). At the end of her maternity leave, the employee was still an employee and as such had a right to work: there was no need for a statutory right to return to work after maternity leave.
The "right to return" was different. Only a woman with two years' employment was eligible. By section 39, she was given the right to return to work at any time during the period beginning at the end of her maternity leave period and ending 29 weeks after the birth. There are many detailed provisions regulating the right to return, the most important of which, for the purposes of this case, are the following:
Section 40 made the right to return dependent upon the employee having given notice of her intention to exercise the right at the same time as she gave notice under section 37 relating to maternity leave.
Mrs. Halfpenny started her employment with the appellant employers on 6 June 1988. Her letter of appointment describes her position as Service Controller. It enclosed the statement of her terms and conditions of employment, but made no specific mention of maternity rights in the contractual documentation. Under the contract, she was entitled to 30 weeks paid sick leave in any 12 month period. In 1994 she became pregnant and in August 1994 started a period of paid sick leave for reasons connected with her pregnancy. She was not fit to return to work before the commencement of her statutory maternity leave, which was triggered on 6 March 1995, six weeks before the expected week of confinement. On 6 February 1995, she had given the employers written notice that she intended to exercise her right to return to work. The baby was born on 5 April 1995 and thereafter she remained absent from work in reliance on her statutory right to return.
On 23 September 1995, Mrs. Halfpenny notified her employers under section 42 of her intention to return to work on 29 October. She wrote again on 9 October stating that she was not sure if her return date was 23 or 29 October. Her employers indicated that she should return to work on 30 October. On 13 October, the applicant wrote to the employers 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 notified day of return. She enclosed the appropriate doctor's certificates. On 23 October the employers replied telling her that she had the right to extend her leave for four weeks for medical reasons supported by a doctor's certificate, i.e. she had the right conferred by section 42(3). Mrs. Halfpenny responded expressing her concern that she was unable to give an exact date for her return to work and asked what the effect would be if she could not return on 27 November. On 13 November, the employers replied:
On 24 November, the applicant wrote:
With this letter she sent a doctor's certificate stating that she was suffering from depression.
Mrs. Halfpenny did not physically attend at her place of work on 27 November. On 29 November, the employers wrote:
Despite further correspondence and a meeting, the employers refused to take Mrs. Halfpenny back, but never used express words of dismissal.
Mrs. Halfpenny brought proceedings in the Industrial Tribunal claiming unfair dismissal, breach of contract by wrongful dismissal and breach of the Sex Discrimination Act 1975. The Industrial Tribunal dismissed all three claims. Although both parties had argued before them on the basis that Mrs. Halfpenny's contract of employment had lasted until 27 November, the Industrial Tribunal held that it had come to an end at the end of her maternity leave. Accordingly, so they held, she could not have been an employee in November 1995 and could not be dismissed in November 1995. Therefore the claim for unfair dismissal failed. Similarly, her claim under section 6(2)(b) of the Sex Discrimination Act 1975, since it only applied where an employer discriminates against "a woman employed by him": if there was no contract of employment in November 1995, she was not a woman employed by him.
An appeal to the Employment Appeal Tribunal was dismissed. The Employment Appeal Tribunal accepted that, in view of the parties' agreement that the contract continued until 27 November 1995, it was wrong for the Industrial Tribunal to have found termination at an earlier date. However, they held that the contract came to an end by reason of Mrs. Halfpenny's failure to comply with the statutory machinery which required of her a physical return to work on 27 November.
During the period when an appeal from the decision of the Employment Appeal Tribunal was pending in the Court of Appeal, another division of the Court of Appeal (Lord Woolf, M.R., Aldous and Mummery, L.JJ.) decided Kwik Save Stores Ltd. v. Greaves  I.C.R. 848. In that case, as in the present, the applicant had complied strictly with all the statutory requirements entitling her to return to work. She had two years' service; she had given notice of her intention to return under section 37; she had given notice of the day of her return ("the notified day of return") as required by section 42. On the notified day of return, she was ill, but attended her place of work to hand in a medical certificate. The Court of Appeal held that in order to effect a complete exercise of the statutory right, there was no need to return physically on the notified day of return; the statutory right to return was completely exercised once and for all by the service of the notice under section 42; therefore even though the applicant did not return physically within the period of 29 weeks from the birth, the employer was by force of section 56 deemed to have dismissed her by preventing her return at a later date. Moreover, that dismissal was unfair even though the reason for the dismissal was a misunderstanding of the law.
When this present case reached the Court of Appeal (Hirst, Ward and Robert Walker, L.J.J.)  I.C.R. 834, the employers conceded that the Kwik Save case was indistinguishable. The Court of Appeal therefore found that under section 56, there had been a dismissal and that such dismissal was unfair. As for the claim for breach of contract, they held that the exercise of the statutory right to return must have revived the contract of employment at the latest from 27 November. Accordingly, the employers' letter of 29 November was a dismissal in breach of contract. Finally, the Court of Appeal held that, for the same reasons that they had just mentioned, Mrs. Halfpenny must have been in the employment of the appellants on 27 November. The Industrial Tribunal had held that, if, contrary to their view, Mrs. Halfpenny was employed on 27 November, her dismissal was sexually discriminatory. The Court of Appeal adopted that finding by the Industrial Tribunal and held that she had been discriminated against contrary to section 6 of the Sex Discrimination Act.
The main difficulty in this case is to determine what constitutes a "return to work" within the meaning of the Act. I will consider that question first and then, in the light of my conclusions, consider Mrs. Halfpenny's claims for unfair dismissal, wrongful dismissal and unlawful sexual discrimination.
The Right to Return to Work
There are three possible views as to what constitutes a return to work, viz:(a)
There are substantial objections to adopting each of these meanings, however some meaning has to be given to the concept and for the following reasons I have concluded that view (c) is the right one.
Construction (a) is at first sight the most attractive. In the absence of indications to the contrary, one would expect a "return to work" to mean that the employee had to come back to the workplace to work. This prima facie view is strengthened by the fact that sub-sections (3), (5) and (6) of section 42 provide expressly what is to happen when physical return is prevented by extraneous circumstances, viz. sickness or interruption of work. However, as the powerful judgment in the Kwik Save case demonstrates, there are formidable objections to adopting this prima facie construction. The whole purpose of this legislation is to seek to ensure that an employee gets her job back after childbirth or confinement, subject to complying with certain detailed requirements as to the giving of notices. It would indeed be strange if an employee who has observed all the statutory requirements should have no right to return simply because on the notified day of return she was by circumstances outside her control unable to be physically present. The examples are given in the Kwik Save case of the employee who, on her way to work on the notified day, is knocked over by the Managing Director of her employer or is prevented by a blizzard from getting to work. On construction (a), such an employee would not have returned to work on the notified day and would have no other right to return.
What then of alternative (b) which was favoured by the Court of Appeal in Kwik Save and followed by the Court of Appeal in the present case? There is no doubt that the Court of Appeal were much influenced by their desire to avoid the bizarre consequences of adopting construction (a). In addition they emphasised the wording of section 42(1) -
They said that these words suggest that the giving of the notice by itself constitutes the exercise of the right to return given by section 39 and led the Court of Appeal in the Kwik Save case (at page 862(f)-(g)) to say that:
In my judgment that construction is not satisfactory for both textual and practical reasons. First, there is no doubt that whatever constitutes a "return to work", it is an event which occurs at a particular time. The right granted by section 39 is to return "during the period . . . ending 29 weeks after the beginning of the week in which childbirth occurs." Section 42 then provides for the giving of notice "21 days before the day on which she proposes to return of her proposal to return on that day". This shows that the service of the notice cannot itself constitute the return to work: the notice is of a proposal to return to work at least 21 days later. Under section 42(3), the employee, having notified a day of return, can postpone her return for four weeks, even though the postponed date is more than 29 weeks after the week of birth. This shows that the time to do the act constituting a return had to be expressly extended beyond the 29 weeks, even if notice was given within the 29 weeks. In my judgment, the words clearly show that something has to be done to constitute an actual return: the notice under section 42 is an election to exercise the right to return which is a necessary step in the process of returning to work, but which does not itself constitute a return to work.
Finally, on construction (b), it produces an anomalous practical position. Say the employee gives notice of return for day X, but on day X neither physically returns nor communicates with her employer. On construction (b), the employer has to treat her as having returned to work, even though he hears nothing from her long after the 29 weeks have expired. Is he required to pay her during this period? If he is to deal with her position, he will have to search her out and then go through the whole procedure of dismissal. This is quite inconsistent with the statutory machinery designed to ensure that the whole matter is clarified by the end of the 29th week after the birth, save in circumstances specifically dealt with by the various sub-sections of section 42.
I turn then to construction (c). On this construction, the giving of a notice under section 42 is necessary, but not by itself sufficient, to constitute a return to work. The section 42 right is similar to a unilateral contractual option. One speaks of "exercising" an option by giving the specified notice. But that does not mean that the whole transaction is completed by giving the notice. Take, for example, an option to purchase property at valuation on giving 28 days' notice. That option is exercised (i.e. triggered) by the giving of the notice: but the whole transaction is not complete until there has been a valuation, the land has been conveyed and the price paid. So, in the present case, the statutory right of return is exercised by the giving of the notice under section 42: that is a notice of a "proposal to return" on a particular day. The notice is an election to return on that day: it is not itself a return.
The statutory machinery regulating the actual return to work (as opposed to the exercise of the statutory right to do so) is as follows. On return to work, the employee becomes entitled to terms and conditions as to pay, seniority and otherwise no less favourable than she would have had had she not been absent from work after the end of her maternity leave: section 39(2). This applies whether or not there has been a contract of employment in force during her absence. Therefore, when she "returns to work" within the meaning of the Act, the employee thereupon becomes entitled or re-entitled to her full contractual rights. The rights of an employee include the right to work and therefore once she has returned she no longer needs any further statutory right to enable her to return to work. The critical question is therefore what the draftsmen envisaged by the phrase "return to work" which mark the divide between the employee's rights being only the right to return under the statute and her rights becoming again that of a full employee.
In my judgment the "return to work" consists of an act or acts by the employee consistent with the due performance by her of her revived contract of employment. In the normal case this will require her to attend for work physically. But if the circumstances are such that contractually she would not be bound to be physically present on that date and she demonstrates that she was on that day acting in accordance with her contractual rights and duties, that constitutes a return to work. Thus if her attempt to get to work is physically prevented by, for example, an accident, transport strike or weather conditions, she would have returned to work within the meaning of the statute. So if she is ill, informs her employer of the fact and presents the certificates required by her contract of employment, she will nevertheless have returned to work on that date.
The objection to this construction is that it marries badly with the provisions of section 42(3) which enable the employee, on presenting a medical certificate, to extend the date of return by 28 days: sub-section (4) provides that this can only be done once. It is an obvious anomaly that, although Parliament has directed its mind to the question of illness on the day of return and has permitted one extension of 28 days after the 29 week period has expired, the reinstatement of the employee's rights to paid sick leave enable her, if still sick, to be absent without penalty for as long as her right to sick leave endures. I find this anomaly less offensive than those which I have pointed out in relation to the other two possible constructions. After all a very similar anomaly applies however the statute is construed. Say a well-advised employee who is still sick rises from her sick-bed to attend work on the notified day, or the postponed day under section 42(3). On any construction, she has returned to work. Therefore her contractual rights include the right to sick leave have been revived by section 39(2) and she can take advantage of them.
In Kelly v. Liverpool Maritime Terminals Ltd.  I.R.L.R. 310, the Court of Appeal held that in the circumstances of that case, an employee had not "returned to work" by submitting medical certificates and saying that she was unable to return. It is suggested that that case decides that you cannot return to work just by submitting a medical certificate and asking for leave of absence. In that case the whole question of return to work was dealt with by the parties on a most informal basis. So far as I can see, no notice was sent under section 42, a point not referred to in the judgments. It was held that the employee's letter did not ask for contractual sick leave, but it appears that if it had done so, it would have constituted a return to work: see p. 314, paragraph 32. Therefore the case turned on the special facts and such authority as it provides is to the effect that a claim for contractual sick leave on the notified day is a return to work.