Halfpenny v IGE Medical Systems Ltd
| Jurisdiction | England & Wales |
| Judge | LORD HOPE OF CRAIGHEAD,LORD MACKAY OF CLASHFERN,LORD GOFF OF CHIEVELEY,LORD BROWNE-WILKINSON,LORD CLYDE |
| Judgment Date | 14 December 2000 |
| Judgment citation (vLex) | [2000] UKHL J1214-2 |
| Date | 14 December 2000 |
| Court | House of Lords |
[2000] UKHL J1214-2
HOUSE OF LORDS
Lord Hope of Craighead
Lord Mackay of Clashfern
Lord Goff of Chieveley
Lord Browne-Wilkinson
Lord Clyde
My Lords,
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.
My Lords,
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.
My Lords,
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.
My Lords,
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:
"39(1) An employee who -
(a) has the right conferred by section 33, 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, shall also have 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 beginning of the week in which childbirth occurs.
(2) 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 -
(a) on terms and conditions as to remuneration not less favourable than those which would have been applicable to her had she not been absent from work at any time since the commencement of her maternity leave period,
(b) with her seniority, pension rights and similar rights as they would have been if the period or periods of her employment prior to the end of her maternity leave period were continuous with her employment following her return to work …, and
(c) otherwise on terms and conditions no less favourable than those which would have been applicable to her had she not been absent from work after the end of her maternity leave period."
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.
"42(1) An employee shall exercise the right to return to work under section 39 by giving written notice to the employer … at least 21 days before the day on which she proposes to return of her proposal to return on that day (the "notified day of return").
(2) An employer may postpone an employee's return to work until a date not more than four weeks after the notified day of return if he notifies her before that day that for specified reasons he is postponing her return until that date, and accordingly she will be entitled to return to work with him on that date.
(3) Subject to sub-section (4), an employee may -
(a) postpone her return to work until a date not exceeding four weeks from the notified day of return, notwithstanding that that date falls after the end of the period of 29 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 sub-section (1), so that she returns to work not later than four weeks from the end of that period of 29 weeks;
if, before the notified day of return (or the end of the period of 29 weeks), she gives the employer 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 the end of that period).
(4) Where an employee has once exercised a right of postponement or extension under sub-section (3)(a) or (b), she shall not again be entitled to exercise a right of postponement or extension under that sub-section in connection with the same return to work.
(5) If an employee has notified a day of return but there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work on the notified day of return, she may instead return to work when work resumes after the interruption or as soon as reasonably practicable afterwards.
(6) If -
(a) no day of return has been notified,
(b) there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work before the end of the period of 29 weeks beginning with the week in which childbirth occurred, or which appears likely to have that effect, and
(c) in consequence, the employee does not notify a day of return,
the employee may exercise her right to return in accordance with sub-section (1) so that she returns to work at any time before the end of the period of 28 days from the end of the interruption notwithstanding that she returns to work outside the period of 29 weeks.
44(1) An employee who has the right to return to work under section 39 and a right to return to work after absence because of pregnancy or childbirth under a contract of employment or otherwise may not exercise the two rights separately but may, in returning to work, take the advantage of whichever right is, in any particular respect, the more favourable.
(2) The provisions of sections 39, 41 to 43, 56 and 86 … shall apply … to the exercise of the composite right described in sub-section (1) as they apply to the exercise of the right to return to work under section 39.
56. Where an employee has the right to return to work under section 39 and has exercised it in accordance with section 42 but is not permitted to return to work, then subject to section 56A she shall be treated for the purposes of this Part as if she had been employed until the notified day of return, and, if she would not otherwise be so treated, as having been continuously employed until that day, and as if she had been dismissed with effect from that day for the reason for which she was not permitted to return."
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...
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