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Judgments - Halfpenny v. Ige Medical Systems Limited

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    Accordingly, in my judgment, but for the employers' conduct, Mrs. Halfpenny would have returned to work on 27 November, the date agreed for her return after postponing the originally notified day. Her letters showed every wish to return to work so far as her health permitted. She was entitled to contractual sick leave. The employers would not contemplate anything other than her physical return to work on 27 November. By refusing to accept her as having returned to work, they were in breach of her statutory rights.

Unfair Dismissal

    Since Mrs. Halfpenny was not permitted to return to work, she falls to be treated for unfair dismissal purposes as having been employed until the notified day (27 November) and then dismissed on that day for the reason why she was not permitted to return: section 56. She was not permitted to return because the employers thought, mistakenly, that she had not in fact returned on 27 November, i.e. because of a mistake of law. In Kwik Save, the Court of Appeal (at page 864 - 5) held that a dismissal for the reason that an employer had made a mistake of law must necessarily be unfair. The Court of Appeal in the present case followed that decision. But in my judgment it does not follow as a matter of law that a dismissal made because of a mistake is necessarily unfair. Unlike wrongful dismissal (where any breach of contract whatever the motivation is actionable), liability for unfair dismissal depends on the state of mind of the employer. Although the occasions on which dismissal because a mistake of law is not unfair may be few, I do not think that such a result is impossible, especially where, as here, the employer was acting on a legal view apparently established as correct by Court of Appeal decision.

    In the circumstances, in my judgment the case should be remitted to the Industrial Tribunal to decide whether the dismissal was unfair and, if so, to fix compensation.

Wrongful Dismissal

    In my judgment there is no right to damages for wrongful dismissal in this case. The exact status of the contract of employment between Mrs. Halfpenny and her employers during the period of her absence for maternity reasons is not clear. But one thing is common ground: at the lowest, all contractual obligations are suspended unless and until the employee returns to work. Therefore in the present case, there can have been no contractual obligation capable of being breached save an obligation to allow Mrs. Halfpenny to return. There appears to have been no contractual obligation to permit return separate from the statutory right. But even if there were such a right, it would have been part of the compound right referred to in section 44. Mrs. Halfpenny, having opted to pursue her statutory right of action, cannot therefore also enforce any contractual right to return: section 44. In the present case, the employers' breach is to refuse to implement the statutory right: it is not a dismissal of an existing contractual employee.

Sexual Discrimination

    Mrs. Halfpenny claims that she was unfairly discriminated against under section 6(2)(b) of the Sex Discrimination Act 1975 which provides:

    "(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -



    by dismissing her, or subjecting her to any other detriment."

    The Industrial Tribunal held that, if it could be said that Mrs. Halfpenny was employed by the appellants, she would have been discriminated against in their refusal to accept her back. I did not understand this finding of discriminatory conduct to have been attacked before your Lordships.

    However, although for rather different reasons, I too cannot find that Mrs. Halfpenny was "a woman employed by" the employers in November 1995. Her contractual rights, if any, were in abeyance until she returned to work under her statutory rights. None of the normal indicia of a contract of employment were present: there was no obligation to provide work or to do work: no obligation to pay. When Mrs. Halfpenny effectively returned to work, then the contract would be revived and she would indeed be an employee. That event never occurred since the employers failed to permit her to return to work.

    It is at first sight puzzling that Mrs. Halfpenny can have a claim for unfair dismissal from her employment, and yet not be an employee. The key lies in section 56 of the 1978 Act. That section artificially treats a refusal to permit a woman to return to work as being a dismissal: she is to be treated "for the purposes of this Part" as if she had been employed until the notified day. These deeming provisions have the effect of giving the employee the remedy in unfair dismissal even though no contract of employment in the true sense existed unless and until she had effectively returned to work and revived the suspended contractual terms. But these provisions are "for the purposes of this Part". They have no general effect on the contract and, regrettable though it is, in my judgment, do not constitute Mrs. Halfpenny an employee of the appellants for the purposes of the law generally. I would therefore disallow Mrs. Halfpenny's claim under the Sex Discrimination Act.

    I would therefore allow the appeal and remit to the Industrial Tribunal (now the Employment Tribunal) the question whether Mrs. Halfpenny was unfairly dismissed under section 56 and dismiss her claims for wrongful dismissal and under the Sex Discrimination Act.

    Finally, I said at the outset that the whole, much criticised system of maternity rights for employees has now ceased to apply and a new system introduced by the Employment Relations Act 1999. Nothing in this decision should be taken as having any bearing on the construction of the Act of 1999. It is to be hoped that the new Act and its new system will be allowed to stand on its own feet and not be construed to comply with the contorted decisions of the courts, which have been the result of the obscurity of the old legislation.


My Lords

    The Employment Protection Act 1975 introduced, among other things, provisions relating to cases of the pregnancy and confinement of employed persons. Plainly this was a social measure, aimed at benefiting the relevant employees, while recognising the requirements of the employer to plan his staffing and preserve the continuity of the running of his enterprise. As the title of the Act indicates, the intention was to give improved protection to the employees. It sought to do this not only by making certain provisions in section 34 whereby a dismissal on the ground of a pregnancy was to be an unfair dismissal, but also. in section 35 by making express provisions relating to an absence from work because of pregnancy or confinement. These included provisions for payment of maternity pay and also an entitlement to return to work. The rights provided in section 35 were not universally available to all employees, but only to those who satisfied certain requirements, including a specified length of service. The legislation later underwent various changes but the essential substance of these rights was perpetuated. Following upon the Council Directive of 19 October 1992 relating to the health and safety of pregnant workers and workers who have recently given birth (92/85/EEC) a further set of provisions was introduced to what was by then the Employment Protection (Consolidation) Act 1978, itself already amended, relating to a right to maternity leave. The regime dealing with this maternity leave was grafted onto the existing provisions relating to the right to return, but was able to come into operation regardless of the length of service of the employee. The right which had been provided under the earlier legislation, the "right to return", was now made to be available after the expiry of the period of the new "maternity leave" for the benefit of those employees who possessed the particular qualification of length of service as well as the right to "maternity leave". It is with this right that the present appeal is particularly concerned.

    Section 39(1) of the 1978 Act (as applicable to the present case) expressly grants the right to return to work to an employee who qualifies under that subsection. The right was the "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 39(2) defines what is meant by the right to return to work. It states:

    "An employee's right to return to work under this section is the right to return to work with the person who was her employer before the end of her maternity leave period, or (where appropriate) his successor, in the job in which she was then employed…."

What follows are detailed provisions securing that her contractual conditions are not, to put it generally, to be worse than they otherwise would have been, and with her continuity of employment preserved.

Section 42(1) provides:

    "An employee shall exercise the right to return to work under section 39 by giving written notice to the employer…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')."

At first sight this language suggests that this is prescribing how a return to work is achieved by one who has the right. But I do not consider that that is correct. For one thing the giving of a notice and a resumption of work are two quite different things. The giving of a notice cannot constitute a return to work. Section 40(1) and (2) provides that the employee is not to have the right to return unless she gives written intimation of her intention to exercise the right. The intention to exercise the right cannot simply mean an intention to serve a notice. So the "return to work" cannot be achieved simply by giving the notice. Nor can it have been intended that the employment would recommence on the giving of the notice. What does seem to be intended is that the resumption would take place on the notified day. The opening words of section 42(1) then require to be construed. The word "shall" seems to me significant. The employee has no obligation to return to work; she only has a right. She has no obligation to exercise the right. So the section is not imposing upon her any absolute obligation. I consider that the subsection should be construed as meaning that in order to exercise the right she must give the notification of the proposed date of her return. If she is going to exercise her right then she is obliged to give the advance notice. She is not to be taken to have resumed work when she gives the notice. What she has done is to give the employer notice that at the notified day the right is to take effect. He is then warned that if he fails to permit her to return he will be treated under section 56 as having dismissed her.

    But one then has to consider the substance of the right. I have already quoted the definition. The right is not simply one of undertaking work, but of undertaking work under terms and conditions as good as those which she enjoyed before. That is the right which takes effect at the notified date. It is in substance a package of rights and obligations. It is much more than a simple obligation to attend work without qualification or exception. The contract recognises that she may be ill, and that she may be unable to attend work for that reason. It may indeed make express provision for sickness benefit during an absence from work. There may occur some accident to her, or some incident at the workplace, which disables her from engaging in her work. But if all the contractual provisions come into effect on the notified date then it cannot be said that simply because she has failed to attend on the notified date she has lost all right to work. Her position should be the same as if during the ordinary course of her contract of employment she had not attended for work. There may have been a host of reasons why that occurred, but her absence does not necessarily involve a loss of her contractual rights.

    The further subsections of section 42 have been referred to in order to support the proposition that illness can qualify as a reason for absence only once. But while that is true in the context of an extension of the statutory period, and so may operate to delay the resumption of the whole contractual provisions, it does not obviate that happening. The statutory regime is exhausted, but what ensues is not a bare right to work, which is forever lost by a failure to attend on the due date, but a renewed contractual regime, which may operate to preserve the interests of the employee.

    It seems to me that the appellant's construction of the provisions produces a result which is unacceptedly unfair upon the employee. The failure to attend at her place of work on the due date involves an immediate loss of her employment and it seems without any remedy whatsoever. That seems to me to be a result which runs quite counter to the clear purpose of this legislation. Indeed on that approach it might be thought that the employee was better advised to disregard the statutory rights altogether rather than run the risk of so perilous a conclusion.

    Some difficult questions arise upon the precise nature of the contractual relationship, if any, between the parties, under the two successive statutory regimes. It appears that the Act proceeds upon the assumption that there are no relevant contractual rights and obligations, hence the express provision in section 33 that she 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". Under the original terms of the legislation, in section 35(2) of the 1975 Act, the right to return was expressly said to be available whether or not a contract of employment subsists during the period of the employee's absence. That phrase does not appear in the form of the legislation before us. On the view which I have taken it may be unnecessary to explore the point. Whatever the correct analysis may be of the position of the former contract, I am satisfied that under the statute the whole contractual provisions described in section 39(2) are intended to come into operation on the expiry of the statutory period and that is sufficient for the purposes of the appeal.


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