Kwik Save Stores Ltd v Greaves

Under the maternity provisions of the Employment Protection (Consolidation) Act 1978, an eligible employee exercises her right to return to work by giving the required written notice. Physical attendance on the notified day is not an additional condition of exercising that right.

Temporary illness on that day does not extinguish an already exercised right. If the employer refuses to permit the employee to return because she did not attend physically, the statutory deemed-dismissal provisions apply. The employee is treated as dismissed from the notified day, and the dismissal may be unfair.

These were two test appeals concerning employees who had completed the qualifying service, taken maternity absence, notified their intended return, and obtained the permitted extension because of illness. Each was unable to work physically on the notified day. The employers treated the contracts as automatically terminated and denied that any dismissal had occurred.

The Employment Appeal Tribunal held that physical attendance was necessary. In Mrs Greaves’s case, it reversed an Industrial Tribunal decision finding an unfair dismissal. In Mrs Crees’s case, it upheld the conclusion that there had been no dismissal. The central issue was whether written notice alone completed the exercise of the statutory right to return.

1. Both appeals allowed. The court restored the Industrial Tribunal’s decision in Kwik Save Stores Ltd v Greaves and remitted Mrs Crees’s case for the consequences of her unfair dismissal to be decided.
2. The relevant statutory scheme had to be construed in light of Parliament’s purpose of providing special protection for women’s employment after pregnancy and childbirth, while preserving the employer’s need for notice and organisational certainty. The approach in Brown v Stockton-on-Tees Borough Council [1989] AC 20 supported that construction.
3. The employees qualified for the right to return under section 39 and had complied with the notice requirements. Section 42(1) specified precisely how the right was exercised: by giving the employer written notice at least 21 days before the proposed return. Once that notice was given, the right was complete and effective.
4. Neither section 42 nor the relevant contractual provisions required physical attendance at work on the notified day. The postponement and extension machinery did not impose such an additional condition. Failure to attend because of temporary illness could instead constitute absence from work and, depending on the circumstances, a potentially fair reason for a later dismissal; it did not undo the prior exercise of the maternity right.
5. Section 56 applied where the employee had the right to return, had exercised it in accordance with section 42, and was not permitted to return. It deemed the employment to continue for the relevant purposes and deemed the employee dismissed from the notified day for the reason given by the employer. The employers’ reliance on Kelly v Liverpool Maritime Terminals Ltd [1988] IRLR 310 did not compel a different result, because that decision did not address the statutory notice mechanism or the section 56 deemed-dismissal issue.
6. The employers’ construction would produce arbitrary and unjust results, allowing temporary illness or an external event to destroy the statutory protection despite proper notice. The court therefore held that both employees had been unfairly dismissed.

• Court of Appeal (Civil Division) — Both appeals from the Employment Appeal Tribunal allowed.
• Employment Appeal Tribunal — In Mrs Greaves’s case, allowed Kwik Save’s appeal and remitted the matter. In Mrs Crees’s case, dismissed her appeal.
• Industrial Tribunal — Found Mrs Greaves unfairly dismissed, but rejected Mrs Crees’s unfair-dismissal claim.