Halfpenny v IGE Medical Systems Ltd

Under the former statutory maternity-return regime, giving the prescribed notice elected to exercise the right to return but did not itself complete the return. The employee also had to act on the notified day consistently with due performance of the revived contract. Physical attendance was unnecessary where the contract permitted absence, including properly notified and certified sick leave.

A refusal to permit such a return engaged the statutory deemed-dismissal provision. A dismissal caused by the employer's mistake of law was not necessarily unfair; fairness remained a question for the employment tribunal. The statutory deeming operated only for the purposes of the relevant Part. It did not generally revive the contract or establish employment for a sex discrimination claim.

The respondent took maternity absence and exercised her statutory right to return under Part III of the Employment Protection (Consolidation) Act 1978. Having postponed her return once because of post-natal depression, she remained medically unfit on the postponed date. She notified the employer and supplied medical certificates, but did not attend physically. The employer refused to take her back.

The Industrial Tribunal dismissed claims for unfair dismissal, wrongful dismissal and sex discrimination. The Employment Appeal Tribunal dismissed her appeal. The Court of Appeal, [1999] ICR 834, held that notice completed the statutory return, that the employer had unfairly and wrongfully dismissed her, and that the dismissal was sexually discriminatory.

The central questions were what constituted a statutory return to work, whether the deemed dismissal was necessarily unfair, and whether the respondent could recover for wrongful dismissal or sex discrimination.

1. The appeal was allowed unanimously. Lord Browne-Wilkinson and Lord Clyde delivered the substantive speeches. Lord Hope of Craighead, Lord Mackay of Clashfern and Lord Goff of Chieveley agreed with both.

2. Per Lord Browne-Wilkinson, giving notice under section 42(1) of the Employment Protection (Consolidation) Act 1978 was necessary but insufficient to constitute a return to work. The notice elected to exercise the right and identified a proposed future return date. The text and structure of sections 39 and 42 required an additional act on that date. The contrary rule in Kwik Save Stores Ltd v Greaves [1998] ICR 848 could not stand.

3. A return consisted of conduct consistent with due performance of the contract revived under section 39(2). Physical attendance would normally suffice, but it was unnecessary where the contract permitted absence. An employee prevented by accident, transport disruption or weather could return within the statutory meaning. So could an ill employee who notified the employer and supplied the certificates required by the contract. Lord Clyde agreed that the entire package of contractual rights and obligations took effect on the notified date and that absence did not necessarily destroy those rights.

4. The respondent wished to return so far as her health permitted and was contractually entitled to sick leave. But for the employer's refusal to recognise anything short of physical attendance, she would have returned on the postponed date. The refusal breached her statutory right and engaged section 56.

5. Section 56 deemed her employed until the notified day and dismissed on that day for the reason why return was refused. Per Lord Browne-Wilkinson, an employer's mistake of law did not make the dismissal necessarily unfair. Fairness depended upon the employer's state of mind and the circumstances, including that its legal view had appeared to be supported by Court of Appeal authority.

6. The wrongful dismissal claim failed. At the lowest, contractual obligations remained suspended until an effective return. The breach was therefore a refusal to implement the statutory right, not the wrongful dismissal of an existing contractual employee. Any contractual right to return formed part of the composite right under section 44 and could not also be enforced after the statutory remedy had been chosen.

7. The sex discrimination claim also failed. The deeming in section 56 applied only for the purposes of Part III and did not make the respondent an employee generally. Her contract would have revived upon an effective permitted return, but the employer's refusal prevented that event. The unfair dismissal issue was remitted to the Employment Tribunal; the other claims were dismissed.

1. House of Lords: Allowed the employer's appeal unanimously. Remitted the unfair dismissal issue to the Employment Tribunal and dismissed the wrongful dismissal and sex discrimination claims.

2. Court of Appeal: [1999] ICR 834. Held that there had been an unfair and wrongful dismissal and unlawful sex discrimination, applying Kwik Save Stores Ltd v Greaves [1998] ICR 848.

3. Employment Appeal Tribunal: Dismissed the employee's appeal. It held that her contract ended when she failed physically to return on the postponed date.

4. Industrial Tribunal: Dismissed all three claims. It held that the contract had ended after maternity leave, so the employee could not subsequently have been dismissed or have been a woman employed by the employer.