Halfpenny v IGE Medical Systems Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Robert Walker,Lord Justice Hirst |
| Judgment Date | 18 December 1999 |
| Judgment citation (vLex) | [1998] EWCA Civ J1218-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | EATRF 97/1375/3 |
| Date | 18 December 1999 |
[1998] EWCA Civ J1218-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hirst
Lord Justice Ward and
Lord Justice Robert Walker
EATRF 97/1375/3
Mrs L Cox QC, Miss T Gill and Miss R Tuck (instructed by the Legal Department of the Equal Opportunities Commission, Manchester) appeared on behalf of the Appellant.
Mr P Nicholls (instructed by Messrs Cameron McKenna, London EC1) appeared on behalf of the Respondent.
Friday, 18th December 1998
This is an appeal by Mrs Halfpenny against the order of the Employment Appeal Tribunal dated 14th July 1997 dismissing her appeal against the Industrial Tribunal's decision to dismiss her complaints against her employers of unfair dismissal, wrongful dismissal and unlawful sex discrimination.
The facts.
Since the decision of the Employment Appeal Tribunal is reported at (1997) I.C.R. 1008, I can state matters quite shortly. Mrs Halfpenny, whom I may simply call the employee, commenced employment with IGE Medical Systems Ltd (the employers) in June 1988 and in time became the Regional Administrator and "lynch-pin" of their Cheshire office. She became pregnant in the summer of 1994. It was a difficult pregnancy and its complications forced her to take paid sick leave in August 1994. Her contractual entitlement to paid sick leave was thirty weeks in any twelve month period. She remained unfit to return to work. In February 1995, having by then completed more than two years continuous employment, she gave proper notice that she intended to exercise her right to return to work at the expiration of twenty-nine weeks from the birth of her baby, which happy event was celebrated on 5th April 1995. Her entitlement to statutory maternity leave was triggered on 6th March 1995. She was then in receipt of maternity pay until 10th July 1995. In September 1995 she informed her employers that she intended to return to work at the end of the period of extended maternity absence, which, they later told her, would be 30th October 1995. On 13th October, she sought to delay her return to work on the grounds of her ill-health, submitting a medical certificate to confirm that she was suffering from post-natal depression. Her employers were sympathetic and agreed to extend her "leave", informing her that she still retained her right to return to work up until 27th November. She remained unwell and wrote expressing her concern that her depressive illness would delay her return beyond that date. She asked for clarification of her entitlement to return to her job. On 13th November the employers replied:—
"As stated in my previous letter, you are legally entitled to extend your maternity leave by four weeks for medical reasons which takes you to 27th November 1995. The Company is not legally obliged to hold your job open after this date, and has regretfully taken the decision that it is unable to do so."
She replied on 24th November:—
"Whilst I realise that my maternity leave could be only extended by four weeks, I hope the Company would be more lenient in these exceptional circumstances. I am still under my Doctor for treatment and hope that I will recover as soon as possible. I would be grateful if you could write to me with your comments."
She did not attend for work on 27th November. Two days later the employers wrote to her:—
"You have been absent from work since 13th August 1994 taking into account your sick leave prior to maternity leave. As the Company has already fulfilled its legal obligation by extending your maternity leave by four weeks on medical grounds, we feel unable to prolong your leave for an additional period of time, and regrettably the contents of our letter dated the 13th November 1995 will still stand."
Despite her pleas and entreaties, written and oral, the employers were unrelenting and they declined to take her back into employment.
Her claims.
The Industrial Tribunal dismissed all of her claims. In summary they held that she was not dismissed by the employer's refusal to extend her leave for the second time, but that her employment terminated on the cessation of the receipt of maternity pay on 7th July 1995. Her claim in respect of sex-discrimination by their less favourable treatment of her compared with a male employee who had been permitted to remain off work on sick leave for over a year failed because she was not an employee at the time she was dismissed or suffered the detriment of which she complained.
The Employment Appeal Tribunal reversed the findings as to the date of termination because it was and always had been common ground that the contract continued until 27th November and no one had contended that termination of the contract was linked to the ending of the receipt of maternity pay. They held that the contract was put in suspense and that upon the employee's failure to exercise her right to return, the contract of employment came to an end by implied agreement not by any act of termination by the employers. Accordingly she was not entitled to any relief at all.
Mummery L.J. gave leave to appeal which Mrs Halfpenny now brings with the support of the Equal Opportunities Commission.
The issues.
The appeal gives rise to a number of difficult questions, including when and how the employment terminates in the case of a pregnant employee who takes maternity leave, exercises her right to return to work at a later time but is then prevented by a postnatal depression or other illness from actually attending for work on the expiration of that extended period. If she was dismissed, was the dismissal automatically unfair? What is the extent of the protection afforded to women as regards pregnancy and maternity deriving from the Sex Discrimination Act 1975 and the Equal Treatment Directive 76/207/EEC?
These are fundamental questions which must affect many employers and employees but there are no easy answers. I would not begin my search for the solutions without repeating my agreement and sympathy with the observations of the Industrial Tribunal that "the law on maternity leave is notoriously complex, (and) is fraught with pitfalls for the employee". The Employment Appeal Tribunal justifiably complained, as other distinguished judges have done in the past, that the law has become too complicated in "an important area where employers and their female staff need to know where they stand." It is surely not too much to ask of the legislature that those who have to grapple with this topic should not have to have a wet towel around their heads as the single most important aid to the understanding of their rights.
The statutory background.
With relief, therefore, I adopt the approach of the Employment Appeal Tribunal who said:—
"We shall not burden this judgment with various statutory requirements which the appellant was required to comply with in order to exercise her statutory right to return to work following her confinement. Quite simply, she cleared all the hurdles …"
It is, however, necessary to set out the statutory scheme in broad terms. When the matter came before the Industrial Tribunal the Employment Protection (Consolidation) Act 1978 (the 1978 Act) was in force. That has now been replaced by the Employment Rights Act 1996 (the 1996 Act). I am assured by counsel that the provisions are substantially the same in their effect, though not perhaps identical, and it may be more helpful to those who have to grapple with the law if I were to refer to the current provisions and note the older sections in parenthesis only.
Part V111 (Part 111) deals with "MATERNITY RIGHTS", the first of which is a "General right to maternity leave", defined as follows:—
" 71 (s. 33) General right to maternity leave
(1) An employee who is absent from work at any time during her maternity leave period is (subject to sections 74 & 75 (ss. 36 & 37)) 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 72 (s. 34) provides for the commencement of the maternity leave period and section 73 (s. 35) its duration defined to be a period of 14 weeks from its commencement or until the birth of the child, if later. There follow in sections 74, 75 and 76 (ss. 36. 37 and 37A) the complicated provisions for the employee's giving the relevant notices of commencement, pregnancy and early return. Section 78 (s. 38A) deals with contractual rights to maternity leave as follows:—
"78(1) An employee who has both the right to maternity leave under section 71 and another right to maternity leave (under a contract of employment or otherwise) may not exercise the two rights separately but may, in taking maternity leave, take advantage of whichever right is, in any particular respect, the more favourable.
(2) The provisions of sections 72 to 77 apply, subject to any modification necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in subsection (1) as they apply to the exercise of the right under section 71."
That concludes the group of sections dealing with the "general right to maternity leave."
The next heading is, "Right to return to work." This right, with which we are concerned, is defined in section 79 (s. 39) as follows:—
"79 Right to return to work
(1) An employee who –
(a) has the right conferred by section 71, and
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Halfpenny v IGE Medical Systems Ltd
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