Appeal No. EAT/288/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 1 February 1994

	Before

	THE HONOURABLE MR JUSTICE WATERHOUSE

	MR A C BLYGHTON

	MISS J W COLLERSON

MS J CIMATU	APPELLANT

WHITBREAD & CO PLC	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M WESTGATE
	(OF COUNSEL)
Central London Law Centre
47 Charing Cross Road
London WC2H 0AN

For the Respondents	MR K DAVIS
	(CONSULTANT)

	MR JUSTICE WATERHOUSE:  This is an Appeal from a decision by an Industrial Tribunal sitting at London (South) on 5 March 1992.  The unanimous decision of the Tribunal on that occasion was that the Originating Application of the Appellant in which she complained of unfair dismissal should be dismissed and the basis of that decision was that in the judgment of the Industrial Tribunal there had never been a dismissal by the Respondents of the Appellant.  We have been told that the case had been listed for hearing before the Industrial Tribunal for a preliminary hearing on the issue whether or not the Tribunal had jurisdiction to determine the Appellant's complaint.  In dealing with the matter now, however, on the hearing of the Appeal it is necessary for us to go into some detail about the factual background in order that the issues that arise may be fully understood.

	The Appellant was employed by the Respondents as a waitress in the Beef-Eater Restaurant in Argyle Street, London W1, from 5 February 1988.  It is clear that she was a satisfactory employee and in normal circumstances her employment would have continued.  In the Spring of 1990, however, she discovered that she was pregnant and, according to the findings of the Industrial Tribunal, she discussed her position with the relevant manager, Mr Soopee, on a date in April 1990.  The finding of the Tribunal was that the discussion involved the dates of the annual leave to which she was already entitled and her potential maternity leave.  It seems that a telephone call was made from Mr Soupee's office to the Respondents' head office wages/personnel department and an agreement was reached there and then both as to the dates of the Appellant's annual leave and her maternity leave.  Unfortunately, however, the terms of that agreement are not spelt out by the Industrial Tribunal in the statement of full reasons for their decision and in the event we have reached the conclusion that that omission is a fatal flaw as far as the decision as a whole is concerned.

	  Resuming the chronology before turning to the detailed issues, the Appellant left work on 3 June 1990, it being agreed that she was to combine her annual leave with maternity leave.  The baby was born on 4 October 1990 and it appears that the Appellant received appropriate rates of maternity pay until December 1990, that is, appropriate rates of pay in accordance with the statutory provisions.

	A further finding by the Tribunal was that there was a meeting between the Appellant and Mr Soupee in December 1990 when the Appellant made known her intention of going to the Philippines in order to make arrangements for both her children to stay with other members of her family in the Philippines.  At that time she was uncertain when she would be returning but the Tribunal accepted that there was a general discussion to the effect that the manager would do his best for the Appellant whenever she did wish to return to work, that is, after her return to this country.

	In the event, the Appellant returned from the Philippines on 21 February 1991.  If the period of maternity leave agreed with the Respondents was the same as that prescribed by statute, the period of maternity leave would have expired at the end of April 1991, that is, at the end of a period of 29 weeks from the date of confinement.  According to the Tribunal, the Appellant did not make any attempt to get in touch with the Respondents until the month of April 1991 and there was a conflict of evidence as to what occurred when the Appellant did go direct to the restaurant and meet Mr Soupee.  The finding of the Tribunal was that there was a general discussion only about whether the appellant was entitled to any outstanding holiday pay and they said that that took place around the beginning of May 1991, in other words, very shortly after the expiration of the 29th week from the date of confinement.  By that time, however, it appears that Mr Soupee had taken action to record the termination, as he saw it, of the Appellant's employment.  His evidence was that he had decided to do so in March 1991.  The finding of the Tribunal was that he punched into the computer at the end of the relevant financial year for the Respondent's business the "fact" that the Appellant had resigned.  He recorded the resignation as having taken effect at the end of February 1991 but it is clear that there had been no communication by the Appellant to support such a conclusion on Mr Soupee's part.  It seems that Mr Soupee did have some information from the Appellant's sister that she had returned from the Philippines but he had made no contact with her and she had not been in touch with him at the time when he recorded her alleged resignation.

	The remainder of the history is by no means clear from the findings of the Tribunal.  Indeed, there is no reference to any specific communication between the parties after the beginning of May 1991.  It is noted, however, in paragraph 7 of the reasons that the reported dismissal by Mr Soupee or acceptance of her resignation was never communicated to the Appellant and the P.45 to which she would have been entitled was not sent to her at that time.  By referring to the notes of evidence with which we have been supplied, a gap in the findings is filled to the extent that the evidence of the Appellant was that she telephoned head office on 1 July 1991 to ask for her P.60 and was then informed that she should have received a P.45.  That was the first communication, as we understand it, to the Appellant to the effect that her employment had been terminated.  It follows that, if a dismissal occurred at that time, she presented her originating application on 28 September 1991, within the prescribed statutory period.

	The approach of the Industrial Tribunal to the matter was that there had been a failure by the Appellant to acquaint herself with her rights and obligations under Part III of the Employment Protection (Consolidation) Act 1978 and, in particular, that she had failed to give the required notices by an employee who seeks to enforce the right to return to work provided by Section 33(1) of that Act.  It was common ground between the parties at the hearing before the Tribunal that the Appellant had not given any notice in pursuance of Section 33(3)(d) at least 21 days before her absence began.  Moreover, it was agreed also that she had not at any time served a notice conforming with the requirements of Section 47(1) as a precondition of her statutory right to return to work, that is, a notice of at least 21 days before the day on which she proposed to return.

	The view of the Tribunal was that, whether or not there had been an agreement as to the period of her maternity leave between the parties, the Appellant was nevertheless under a duty to give both the notices as pre-conditions of the exercise of her right to return.  The matter was put in this way in paragraph 8 of the Tribunal's reasons:

	"In our finding therefore, the relationship between these parties was brought to an end by the applicant's failure to exercise her statutory right to return at the end of April 1991.  It does not seem to us that there was ever a dismissal by the respondents of the applicant at all.  By September 28 1991, when the Originating Application was presented, the applicant had not exercised and was not entitled to exercise any right to return to work either statutorily or contractually and in our finding therefore she had not been 'dismissed' within the meaning of the Act at all.  We therefore find that a Tribunal has no jurisdiction to entertain her application, which is dismissed."

	We have no doubt that, in formulating their conclusion in that way, the Tribunal had in mind the provisions of Section 56 of the Act of 1978, which deals with the situation in which a failure to permit a woman to return to work after confinement is to be treated as a dismissal only when an employee is both entitled to return to work and has exercised her right to return in accordance with Section 47.

	In presenting the Appeal on behalf of the Appellant, the first point made by Mr Westgate is that there was a basic misunderstanding by the Tribunal of the law that applies in a situation in which there has been an express agreement between the parties in relation to maternity leave.  He points out that there was an express finding here by the Tribunal that there was an agreement between the parties made in April 1990 and embracing the Appellant's maternity leave.  Essentially, therefore, the Appellant's rights were to be determined, first of all, by what was agreed on that occasion.  Mr Westgate says that there are, of course, provisions in the Act of 1978 which enable a person who has made a contractual arrangement in respect of maternity leave nevertheless to invoke more favourable statutory rights, to the extent that the statutory provisions confer such rights.  In such circumstances an employee, if she wishes to invoke the more favourable provisions, is required to give the notices required as a precondition of the enforcement of statutory rights.  
	An illustration of the application of those provisions is to be found in the case of Lavery v. Plessey Telecommunications Ltd [1983] IRLR 202.  In that case, the Court of Appeal held that the Appellant's failure to give the length of notice of her intention to return to work following maternity leave required by Section 47(1) of the Act of 1978 precluded her from claiming, under either section 55 or section 56, that when she was not allowed to return she was unfairly dismissed.  For the purposes of that decision, the Court of Appeal assumed that the Appellant did have a contractual right to work but she had sought to enforce the right in the circumstances to which Section 48 of the Act applied.  Accordingly, the finding of the Court of Appeal was that she could not complain of unfair dismissal.  If she had a claim at all, it had to be based on a deemed dismissal under Section 56. 

	Mr Westgate points out, however, that the Lavery situation is not the situation in the present case because there was no attempt here on the part of the Appellant to seek to enforce statutory rights.  She was a person who had a contractual right to return and it was upon that basis that she wished to do so.  In Lucas v. Norton of London Ltd [1984] IRLR 86 this Appeal Tribunal considered a somewhat similar situation.  In that case the employee informed her employer in writing that she was pregnant.  She then had a discussion with management which resulted in a nebulous agreement that she might return to work, although the manager thought that it was highly unlikely that she would in fact do so.  She ultimately left work in the Autumn of 1981 and subsequently received an amount equal to her statutory maternity pay.  When she telephoned the same manager about returning to work, he told her that, following a reorganization, her job no longer existed and that she should contact the Accounts office about redundancy pay.  In the result, an Industrial Tribunal dismissed her complaint of unfair dismissal and found that there had been no specific contractual arrangement covering maternity leave and the right to return to work.  Since she had not fulfilled the requirements of Section 33 of the Act of 1978, she had forfeited her statutory rights and was precluded from claiming unfair dismissal. 

	This Appeal Tribunal, however, allowed the Appeal on the footing that the Industrial Tribunal had wrongly followed the decision in the Lavery case and had concluded that it was unnecessary to find whether or not a contract about her return was still subsisting.  The Appeal Tribunal pointed out that the situation in Lavery was entirely different, because the employee there had taken the necessary steps at the time of the announcement of her pregnancy to avail herself of the rights conferred by the statute. In Lucas the Appellant had never sought to exercise her statutory maternity rights.  The view of the Appeal Tribunal in Lucas was that, although there has been no express contractual arrangement, the Appellant had been given permission to be away from work for whatever reasonable time was involved in her having her baby.  While she was away her contract was varied by non-enforcement of her obligation to render services and the employer was under no obligation to pay her any more than she would have been entitled to receive had she been enjoying the statutory right to maternity leave.  Further findings were that there was an obligation on the employer to take her back in her previous job at a reasonable time after confinement and upon reasonable notice and that the Appellant was under an obligation to go back.  In the events that had occurred, the Respondents' failure to allow the Appellant to return to work had therefore been a dismissal in law and she was entitled to pursue a complaint of unfair dismissal in the ordinary way.  

	Applying parallel reasoning to the present case, it is clear that the failure of the Appellant to serve notice under Section 33(3)(d) initially and then later under Section 47(1) was not a bar to her claim of unfair dismissal.  She had persuaded the Tribunal that there had been an agreement in relation to her annual leave and her maternity leave and she was not therefore under any obligation to give either of the statutory notices that would have been required in the absence of agreement to enforce her statutory right to return to work.  It was necessary therefore for the Tribunal to make appropriate findings, first of all, as to the terms of the agreement reached between the parties in April 1990. 

	Mr Westgate suggests that there are three possible views about what was arranged at that time.  The first theoretical possibility is the employer might simply have acknowledged that the Appellant would exercise her statutory rights under the Act of 1978.  It is suggested, however, that that was not a finding open to the Tribunal on the evidence and that, in any event, it was negatived by the Tribunal's statement of their reasons.

	The second possibility is that there was an agreement for maternity leave and for the Appellant's rates of pay that was a separate contractual agreement but that the period of leave was agreed to be the same as the statutory entitlement, namely a period of 29 weeks ending on 28 April 1991.  On that footing, the Appellant would have been entitled to return at the end of April 1991 in accordance with the contractual arrangement and her evidence was that she was appropriately in touch with the Respondents in that month. 

	A third possibility was that the agreement between the parties was simply that the Appellant should have maternity leave for a reasonable time and that she would return at the expiration of that time, the precise date to be agreed between the parties.  It is suggested further that the agreement as to remuneration was that maternity pay should be paid for the relevant part of that period of reasonable time in accordance with the statutory provisions.  

	Mr Westgate goes on to submit that, against that background, it would have been necessary for the Tribunal to make further detailed findings about precisely what was said between the parties in December 1990, again at the end of April 1991 or the beginning of May 1991 and, finally, at the beginning of July 1991, in order to reach  proper conclusions about the course of events.  Mr Westgate suggests that, within the framework that he outlines, the trip to the Philippines to arrange for the future of the two children did not represent any radical departure or, indeed, any departure at all from the agreed arrangements for maternity leave.  Moreover, it is suggested that there was contact between the parties, either directly or indirectly through the Appellant's sister, thereafter with regard to the availability of work for the Appellant to do, which was inconsistent with any termination of the contract by that time.  It appears to have been common ground before the Tribunal that any purported dismissal of the Appellant by Mr Soupee with effect from the end of February 1991 did not take effect and that there was no repudiation or resignation by the Appellant at that time.  It was necessary, therefore, for the Tribunal to reach a conclusion as to when the contractual relationship between the Appellant and the Respondents did, in fact, end in order to determine whether there was a dismissal and whether the Tribunal had jurisdiction to hear the complaint of unfair dismissal.  

	In response to these arguments, Mr Davis has been compelled to accept that there was a contractual arrangement between the Appellant and the Respondents in relation to maternity leave, which was still subsisting at the date of birth of the child.  In the course of further submissions he has also felt obliged to agree that that contractual relationship was still subsisting in December 1990 because no material event had occurred by that time to bring it to an end.  Whatever may have been the effect of the discussion about the Appellant returning temporarily to the Philippines for the purpose that we have stated, there does not appear to have been any suggestion to the Tribunal below that that discussion had the effect of terminating any prior contractual arrangement between the parties.  Mr Davis has made a number of suggestions as to findings that the Tribunal could have made on the evidence in relation to those contractual arrangements but he is forced to accept that appropriate findings do not appear in the Tribunal's statement of reasons and that it would be inappropriate for this Appeal Tribunal to attempt to make findings of its own on the basis of the very limited material before it.  The Industrial Tribunal's general view of the Appellant was that she had been a good worker and that the relationship between the parties had been an excellent one;  there is certainly no basis upon which this Appeal Tribunal would be justified in drawing adverse inferences about the Appellant's conduct in the period between October 1990 and July 1991. 

	We are faced with the unfortunate position, therefore, that in our judgment there was an error in law on the part of the Industrial Tribunal in directing its attention to the requirements of Part III of the Act of 1978 for the enforcement by an employee of the statutory right to return to work without adequate consideration of the contractual arrangements in fact entered into by the Appellant with the Respondent's manager, Mr Soupee, and the head office of the Respondents, which was consulted in April 1990.  We have some sympathy with the Appellant because, although she had some assistance in the form of a written representation drafted on her behalf by a Citizens Advice Bureau, she had to appear unrepresented before the Industrial Tribunal and she cannot have been aware of the precise relationship between the statutory right to return to work and the rights that may arise under a contract.  Although it is stated that Counsel appeared before her at the hearing below, we are told that he was simply a barrister friend who attended at the Tribunal's premises and who was somewhat strangely occupied outside the court room looking after a child, so that he was not able to afford any actual legal advice as the hearing proceeded. 

	In all the circumstances, therefore, we are bound to hold that the appeal must be allowed.  It is agreed that there must be a rehearing and that it should be before a freshly constituted Industrial Tribunal.  We should add that, in our view, the nature of the argument is such that it is not well-fitted for trial as a preliminary issue.  It is unlikely that time will be saved by further listing of a preliminary issue.  The whole matter can be determined conveniently by a full hearing of the complaint of unfair dismissal.