Halfpenny v IGE Medical Systems Ltd

The statutory right to return to work after maternity absence is effectively exercised by giving the prescribed notices; physical attendance on the notified day is unnecessary. Once properly exercised, the right operates contractually as well as statutorily, and a suspended employment contract revives with its rights and obligations. For unfair dismissal, Employment Rights Act 1996 section 96 deems dismissal on the notified day. A later employer letter may constitute wrongful dismissal at common law. For section 99(1)(c), maternity leave means the statutory 14-week period, not the later return-to-work period. Under the Sex Discrimination Act 1975, the employee remained employed while the contract continued in suspension or abeyance.

The employee became ill during an extended maternity absence and notified her employer of her intention to return. She later supplied medical evidence of postnatal depression and did not attend on the notified return date. The employer refused to keep her job open. The Industrial Tribunal dismissed claims for unfair dismissal, wrongful dismissal and sex discrimination. The Employment Appeal Tribunal, reported at [1997] ICR 1007, held that the contract ended when she failed physically to return. The appeal concerned the effect of proper statutory notice, the contractual status of the employee during absence, the dates and reasons for dismissal, and the application of maternity and sex-discrimination protections.

Lord Justice Ward delivered the leading judgment. Lord Justices Robert Walker and Hirst agreed. The appeal was allowed on all three claims, with the matters remitted to the Industrial Tribunal for determination of relief.

1. Right to return. Following Kwik Save Stores Ltd v Greaves [1998] IRLR 245, the employee’s right to return was fully exercised when she gave the required notices. Actual attendance on the notified day was not required. Section 96 of the Employment Rights Act 1996 therefore deemed her dismissed on 27 November 1995 and continuously employed until that date.
2. Contractual position. The statutory right to return was superimposed on the contract. The contract had been suspended during the maternity absence, but proper notice crystallised the right and revived the contractual rights and obligations. Her absence was supported by medical evidence and she had not exhausted her contractual sick-leave entitlement. The employer’s letter of 29 November was consequently a wrongful dismissal. Section 96 fixed 27 November for unfair-dismissal purposes, while the common-law dismissal occurred on 29 November.
3. Unfair dismissal. The employer’s belief that it was no longer legally obliged to hold the job open was wrong. Under Kwik Save, that mistaken reason could not make the dismissal fair. The issue of relief was remitted.
4. Automatic unfairness. As an alternative matter, section 99(1)(c) was confined to the statutory 14-week maternity leave period. It did not extend to the subsequent 29-week return-to-work period. The reason for dismissal was the employee’s failure to return when required, rather than her taking or benefiting from maternity leave.
5. Sex discrimination. “Employed” in section 6 of the Sex Discrimination Act 1975 bore its ordinary contractual meaning. The employee remained employed when the discriminatory treatment occurred. The Industrial Tribunal’s finding that a comparable man would have received medical investigation and contractual sick leave was unchallenged. The claim was therefore made out. The court left unresolved the broader scope of the special protection under article 2(3) of the Equal Treatment Directive and the alternative issue concerning former employees discussed in Coote v Granada Hospitality Ltd [1998] IRLR 656.

1. Court of Appeal: Allowed the appeal against the Employment Appeal Tribunal and remitted the claims to the Industrial Tribunal for determination of relief. Costs were awarded and leave to appeal to the House of Lords was granted.
2. Employment Appeal Tribunal: By order dated 14 July 1997, reported at [1997] ICR 1007, dismissed the employee’s appeal from the Industrial Tribunal.
3. Industrial Tribunal: Dismissed the complaints of unfair dismissal, wrongful dismissal and unlawful sex discrimination.