Lavery v Plessey Telecommunications Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE |
| Judgment Date | 22 March 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0322-3 |
| Docket Number | 83/0144 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 March 1983 |
[1983] EWCA Civ J0322-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice,
Lord Justice Waller
Lord Justice Dunn
Lord Justice Slade
83/0144
No: 548/81
MISS M. KUSHNER
for
MR J. HAND (instructed by Messrs. Bower, Cotton & Bower) appeared on behalf of the Appellant.
MISS E. SLADE (instructed by Messrs. Barlow, Lyde & Gilbert) appeared on behalf of the Respondent.
This is the judgment of the Court on an appeal from a judgment of the Employment Appeal Tribunal given on 2nd April 1982. It concerns a claim by the appellant, Miss Lavery, to return to her job with her employers, Plessey Telecommunications Ltd., who are the respondents to the appeal, following the birth of her child,
Miss Lavery began her employment in November 1976. Though her original contract of employment is not in evidence, neither side has sought to suggest that it contains any express provisions dealing with her right to maternity leave. In 1979 she became pregnant.
The Employment Protection (Consolidation) Act 1978 ("the 1978 Act") contains a number of provisions governing the statutory rights of employees to return to work after confinement. Those provisions have been substantially amended by the Employment Act 1980, but it is common ground that the present case is governed by the 1978 Act. The general nature of these statutory rights appears from two sections of the 1978 Act. The first two sub-sections of section 33 provide: "(l) An employee who is absent from work wholly or partly because of pregnancy or confinement shall, subject to the following provisions of this Act,—(a) be entitled to be paid by her employer a sum to be known as maternity pay; and (b) be entitled to return to work. (2) Schedule 2 shall have effect for the purpose of supplementing the following provisions of this Act in relation to an employee's right to return to work."
Sub-section (3) of Section 33 provides that "an employee shall be entitled to the rights referred to in sub-section (l) above whether or not a contract of employment subsists during the period of her absence", but then sets out three conditions (a) (b) and (c) which she must fulfil if she is to qualify for such entitlement.
Section 45 (l) defines the relevant right to return to work as: "(l) The right to return to work of an employee who has been absent from work wholly or partly because of pregnancy or confinement is, subject to the following provisions of this Act, a right to return to work with her original employer, or, where appropriate, his successor, at any time before the end of the period of twenty-nine weeks beginning with the week in which the date of confinement falls, in the job in which she was employed under the original contract of employment and on terms and conditions not less favourable then those which would have been applicable to her if she had not been so absent".
Pursuant to condition (c) of Section 33 (3) of the 1978 Act, Miss Lavery (who had also complied with conditions (a) and (b))informed the employers that she would be absent from work as from 11th February 1980, that the anticipated date of her confinement was 2nd April 1980 and that she intended to return to work after the baby was born.
The employers incorporated this information into a common form document ("A1"), which had various items against which the relevant information was entered. The Industrial Tribunal found that a copy of this form was handed to her at the time when she stopped working.
The form was headed "Maternity Leave/Termination", but the word "Termination" was crossed out. The relevant entries on the form were as follows:-
Date Maternity Leave Commenced—11/2/80
Date of Confinement—2/4/80
Date due to Return—27/10/80
Date left Company—8/2/80
Against the entry "Date due to return" there was an asterisk, referring to a footnote which read as follows:—"Both Company and employee have the right to extend the 29 weeks period by a further four weeks providing the Company notify in writing reasons for postponement, the employee produces doctor's certificates".
This footnote plainly had in mind sub-sections (2) and (3) of Section 47 of the 1978 Act, which section regulates the exercise of an employee's statutory right to return to work.
Section 47 (l) provides: "(l) An employee shall exercise her right to return to work by notifying the employer" (who may be her original employer or a successor of that employer) at least seven days before the day on which she proposes to return of her proposal to return on that day (in this section referred to as the "notified day of return")".
Section 47 (2) provides: "(2) An employer may postpone an employee's return to work until a date of 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."
Section 47 (3) gives an employee a corresponding right to postpone her return to work until a date not exceeding four weeks from "the notified day of return" if she produces an appropriate medical certificate.
Section 47 (8) contains provisions adjusting the meaning of the "notified day of return", when an employee's return is postponed under sub-section ( 2) or (3).
In the event the baby was born on 20th April 1980, 18 days later than the anticipated date shown on the form "Al". On Wednesday 22nd October 1980, as the Industrial Tribunal found, Miss Lavery telephoned the Personnel Department of the employers and told them that she wished to return to work on 27th October. This was the date which had been specified in the form "A.l" as being the date on which she was due to return. The five days notice of her proposal to return to work thus given by Miss Lavery was two days short of the minimum seven days notice required by Section 47 (l) of the 1978 Act in respect of a proposed exercise of the statutory right to return to work. As at 22nd October or even 27th October, 1980, however, there would still have been ample time for Miss Lavery to give the requisite seven days notice, since, as is common ground, the period of twenty-nine weeks referred to in Section 45 (l) of the 1978 Act would not have expired until 8th November 1980.
The employers, on receiving this telephone call of 22nd October, did not ask Miss Lavery when the baby had actually been born. Nor did she inform them of the date of birth. They apparently assumed that the actual date of birth had been 2nd April 1980, as contemplated by form Al and that the twenty-nine week period would accordingly expire on 27th October. They therefore concluded that they were not obliged to offer any job to Miss Lavery, on the grounds that they had not been given the requisite seven days' notice and that she had lost her statutory right to return to work. They did not want to have her back. They accordingly told her on 22nd October that there was "no job for her".
If Miss Lavery had understood her statutory rights, she could, as we have said, still have given seven days notice of her proposal to return to work before the twenty-nine week period expired on 8th November. But she did not understand them until it was too late and she gave no such notice. So the employers refused to take her back.
In consequence, Miss Lavery applied to the Industrial Tribunal claiming in effect to enforce her statutory right under Section 45(l) to return to work. Part V of the 1978 Act contains a number of provisions relating to unfair dismissal. Section 54(1) provides that, subject to certain immaterial exceptions, every employee shall have the right not to be unfairly dismissed by his employer. Section 55(1) provides that in Part V, except as respects a case to which section 56 applies, "dismissal" and "dismiss" shall be construed in accordance with the following provisions of this section. Section 55(2), so far as material for present purposes, states: "……an employee shall be treated as dismissed by his employer if, but only if,—(a) the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice, or………"
Section 56 provides the principal sanction in support of an employee's statutory right to return to work. It states: "Where an employee is entitled to return to work and has exercised her right to return in accordance with Section 47 but is not permitted to return to work, then 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".
It seems that the case for Miss Lavery before the Industrial Tribunal was that she had given notice of her return more than seven days before the expiry of 29 weeks from the week of actual confinement, she had effectively exercised her statutory right to return, even though she had only given five days notice of the date of her proposed return. The Tribunal apparently considered that the answer to the question whether she retained any such right depended on whether (as was the minority view) the obligation was on the employers to discover the true date of the baby's birth and to inform Miss Lavery of her rights or whether (as was the majority view) the obligation was on her to inform them of the date of birth. The...
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