Halfpenny v. Ige Medical Systems Limited

This appeal concerned the statutory right of a woman to return to work after maternity leave under the Employment Protection (Consolidation) Act 1978 (as amended) and the correct construction of the phrase "return to work" in sections 39 and 42, and the effect of section 56. The House of Lords held that the right to return is exercised by giving the notices required by section 42 but the substantive event of "return to work" requires acts by the employee consistent with the due performance of the revived contract; service of the section 42 notice alone is not invariably enough. The court applied that construction to section 56, which deems an employee as having been employed until the notified day of return where she is not permitted to return, and remitted to the Employment Tribunal the question whether the employer’s refusal to permit return amounted to unfair dismissal. The Lords rejected the claim for wrongful dismissal and held that the claimant was not "a woman employed by" the employer for the purposes of the Sex Discrimination Act 1975 because contractual rights were suspended until effective return.

This case arose after Mrs Halfpenny, an employee with sufficient qualifying service, took statutory maternity leave and followed the statutory notice procedures under the Employment Protection (Consolidation) Act 1978 to notify a date to return. She was unfit to return on the notified day for reasons of illness supported by medical certificates. Her employer declined to accept her as having returned and indicated it would not hold the job open beyond the extended statutory period. Proceedings were brought claiming unfair dismissal, wrongful dismissal (breach of contract) and sex discrimination under section 6(2)(b) of the Sex Discrimination Act 1975.

Procedural history: the Industrial Tribunal dismissed all claims; the Employment Appeal Tribunal dismissed an appeal; the Court of Appeal (Hirst, Ward and Robert Walker L.JJ.) reversed the earlier tribunals relying on the decision in Kwik Save Stores Ltd v Greaves [1998] ICR 848 and held there had been a dismissal and discrimination ([1999] ICR 834). The House of Lords allowed the employer's appeal in part.

• Nature of claim: declarations and remedies for unfair dismissal, damages for wrongful dismissal and sex discrimination arising from the employer's refusal to permit return after maternity leave.
• Issues framed: (i) What constitutes a "return to work" under sections 39 and 42 of the 1978 Act; (ii) if the claimant was not permitted to return, whether section 56 treated this as a dismissal for unfair dismissal purposes; (iii) whether there was a separate contractual wrongful dismissal actionable in damages; and (iv) whether the claimant was "a woman employed by" the employer for the purposes of the Sex Discrimination Act 1975.
• Reasoning and outcome: The Lords rejected the view that notice alone completes the return and adopted a construction that the employee must do what is required to perform the revived contract on the notified day (normally physical attendance, or conduct consistent with contractual entitlement such as presenting medical certificates when sick). On that basis the claimant was to be treated under section 56 as dismissed on the notified day and the question whether that dismissal was unfair (particularly where the employer was acting on an apparent but mistaken view of the law) was remitted to the Employment Tribunal. The Lords held there was no claim in wrongful dismissal because contractual obligations were suspended until effective return and section 44 prevented pursuing both statutory and contractual routes in parallel; and the claimant was not an employee for general purposes in November 1995 so the Sex Discrimination Act claim failed.

The House of Lords noted that the statutory regime in question had been superseded by the Employment Relations Act 1999 and confined its decision to construing the earlier provisions.

Appeal allowed. The House of Lords held that exercising the statutory right to return involves both the notices under section 42 and acts consistent with performing the revived contract on the notified day (ordinary physical attendance or behaviour consistent with contractual entitlement such as presenting sick certificates). Because the employer would not permit her to return, section 56 treated her as dismissed on the notified day and the question whether that dismissal was unfair was remitted to the Employment Tribunal. Claims for wrongful dismissal were rejected because contractual obligations were suspended pending an effective return and could not be enforced in parallel with the statutory remedy; the claim under the Sex Discrimination Act 1975 failed because she was not "a woman employed by" the employer in November 1995 for general purposes of the law.

Industrial Tribunal: claims dismissed. Employment Appeal Tribunal: appeal dismissed. Court of Appeal (Hirst, Ward and Robert Walker L.JJ.): reversed earlier tribunals and found dismissal and discrimination ([1999] ICR 834). House of Lords: appeal allowed ([2000] UKHL 64). The judgment discussed and distinguished Kwik Save Stores Ltd v Greaves [1998] ICR 848.