Appeal No. EAT/1076/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 28th March 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR L D COWAN

	MR D G DAVIES

MRS P MCNAMARA	APPELLANT

SERICAL S.A.R.L.	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR RICHARD MCNAMARA
(Husband of the Appellant)
Field House
Hayley Croft
Duffield
Derbyshire
DE56 4HJ

For the Respondents	MR IAN SCOTT
(of Counsel)
Messrs Grindeys
Solicitors
Glebe Court
Stone-on-Trent
Staffordshire
ST4 1ET

	MR JUSTICE MUMMERY (PRESIDENT):   This is an appeal by Mrs P A McNamara against the decision of the Industrial Tribunal held at Birmingham on 2nd and 3rd August 1993. For Full Reasons notified to the parties on 18th November 1993, the Tribunal unaminously decided that Mrs McNamara was not dismissed, nor was she discriminated against because of her sex; nor was she entitled to equal pay with a Mr Barrett as they were not engaged in like work.

	Mrs McNamara appeals against that Decision by a Notice of Appeal served on 7th February 1994.

	On the hearing of the Appeal Mrs McNamara has been represented by her husband. He also argued the case before the Industrial Tribunal. Mr Scott appears on behalf of the former employers of Mrs McNamara, Serical S.A.R.L..

	The claim was for unfair dismissal, sex discrimination and equal pay. It was started by Mrs McNamara on 29th September 1992. She had been employee of Serical from April 1987. She was employed as a account manager. Serical is a Franco/German company engaged in the manufacture of ceramic transfers manufactured in Germany and the United States. Mrs McNamara's responsibility was to liaise with customers in the United Kingdom, and co-ordinate design and manufacture. She was paid a basic salary of £18,265.00 and earned approximately £6,000.00 in commission in her final year of employment with the company. She also had the benefit of a company car and pension.

	The circumstances which led to the proceedings were that Mrs McNamara left work in December 1991 to have a baby. The baby was born on 30th January 1992. There was no dispute that the twenty-nine week period of maternity leave required under Section 45 of the 1978 Act started on 26th January 1992 and expired on 15th August 1992. Mrs McNamara never worked again for the Company. The circumstances in which that occurred gave rise to the proceedings.

	In her complaint, as amplified by an addendum of 4th November 1992, she stated this:

		"It is not clear whether I resigned or was dismissed. If the Tribunal determines that I resigned, then my complaint is of constructive dismissal."

All the claims were contested by the Company. They denied that Mrs McNamara was dismissed. In their Notice of Appearance dated 4th December 1992 they denied that they had done anything to make it difficult for Mrs McNamara to return to work. They denied that there had been any sex discrimination against her. They denied that they had done anything which amounted to a breach of contract, entitling Mrs McNamara to terminate the contract without notice. They disputed that there ever was any agreement with Mrs McNamara that she could return to work with them on a part-time basis. Their case was that she had not given notice in the proper form of her intention to return to work on a particular date in accordance with Section 47(1) of the 1978 Act. They took issue with various other factual allegations made by Mrs McNamara in her application.

	The Tribunal spent two days hearing the case. We have the bundle of documents that was before the Industrial Tribunal. The Industrial Tribunal had an advantage which we do not have. They saw the witnesses, and heard the them give their evidence. 

	Certain facts were not in dispute. The Tribunal identified the issue before them as whether Mrs McNamara was dismissed, whether she was prevented from exercising her right to return to work, contrary to the provisions of the 1978 Act, and, finally, whether she was otherwise unfairly dismissed, assuming that she was dismissed in the first place.

	In paragraph 4 of their Full Reasons, the Tribunal referred to the relevant statutory provisions. It has not been contended by Mr McNamara that there is any mis-direction on the relevant provisions contained in that summary.

	The Tribunal made findings of fact. They accepted Mrs McNamara's contention that, before she left in December 1991, it had been agreed that she should have her contractual right to return on 7th September 1992. That is later than the expiration of the twenty-nine weeks under Section 45.

	The Tribunal referred to the fact that she sought to extend the return date of 7th September by a further four weeks, until 5th October. Medical certificates were provided to the employer relating to her medical condition, in support of that extension.

	The Tribunal came to the first of the two main points in their decision. The first was whether she had validly exercised the right to return to work, in accordance with Section 47(1). Section 47(1) of 1978 Act, in the form which it existed at the relevant time, reads as follows:

		"An employee shall exercise her right to return to work by [giving written notice  to] the employer (who may be her original employer or a successor of that employer) at least [twenty-one] days before the day on which she proposes to return of her proposal to return on that day (in this section referred to as 'the "notified day of return")."

Whether that right had been validly exercised also requires reference to Section 48 which deals with the contractual right to return and the inter-relationship of the contractual and statutory rights. Section 48 provides:

		"(1)		An employee who had a right both under this Act and under a contract of employment, or otherwise, to return to work, may not exercise the two rights separately but may in returning to work take advantage of whichever right is, in any particular respect, the more favourable."

		"(2)		The provisions of sections 45, 46, 47, 56 and 86 and paragraphs 1 to 4 and 6 of Schedule 2 shall apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in subsection (1) as they apply to the exercise of the right to return conferred solely by this Part."

Paragraph 6 of Schedule 2 provides:

		"(1) This paragraph applies to the dismissal of an employee who is under this Act entitled to return to work and whose contract of employment continues to subsist during the period of her absence but who is dismissed by her employer during that period after the beginning of the eleventh week before the expected week of confinement."

		"(2) For the purposes of sub-paragraph (1), an employee shall not be taken to be dismissed during the period of her absence [after her maternity leave period] if the dismissal occurs in the course of the employee's attempting to return to work in accordance with her contract in circumstances in which section 48 [section 44] applies."

	The Tribunal considered the argument that Mrs McNamara had exercised her statutory and contractual rights. That argument was based on the application of the statutory provisions to the manuscript document on pages 25 to 27 of the bundle. That is a document dated 10th August 1992, headed "Pat McNamara, Business Development Proposal". It contains three pages dealing with various matters relating to her position, which was stated to be "key account manager", and to the establishment and implementation of a strategy. It deals with particular matters, such as: conditions of employment; salary; commission; no formal hours of work; travelling expenses and other expenses being reimbursed and pensions contribution. There is then this sentence:

		"Payment of 36 days holiday to be made on 7 September. This to be calculated as 36/260 of previous annual earnings with effect from 7th September holiday to be six working weeks."

It concludes:

		"This proposal reflects the long term nature of investment in this type of business. It may well be that in the first year, little business is actually produced but as the relationship builds and experience develops the investment will pay off."

	The Tribunal observed that there was no specific statement in that document that Mrs McNamara intended to return to work on 7th September. The 7th September was mentioned on page 27 as the date from which holiday payments and holiday length were to be calculated. The Tribunal also found that, before Mrs McNamara left to have the baby in December 1991, she had been working four days a week, reduced from five days. Her proposal made, while she was still living in the same area was for work of a part-time basis, visiting the office, at least once a week and doing other work from home. In the light of those facts and of the terms of the document of 10th August, the Tribunal decided that Section 47(1) was not complied with and therefore there was no valid exercise of the right to return to work. In those circumstances, the provisions of Section 56 did not apply. Section 56 provides:

		"Where an employee is entitled to return to work and has exercised her right to return in accordance with section 47 [has the right to return to work under section 39 and has exercised it in accordance with section 42] but is not permitted to return to work, then [subject to section 56A] she shall be treated for the purposes of this Part as if she had been employed until the notified day of return, and, if she would not otherwise be so treated, as having been continuously employed until that day, and as if she has been dismissed with effect from that day for the reason for which she was not permitted to return."

It is clear from the wording of that section that, it only operates in cases where there has been an exercise of the right to return in accordance with Section 47 and that there has been a notified day of return.

	The Tribunal decided against Mrs McNamara on this point for two reasons. First, the document of 10th August did not give written notice of her intention to return on a particular day, namely 7th September. Secondly, the statutory right to return to work under Section 45 is to the job in which she was employed before she left. That was a four day week, which was regarded by the company as full-time employment. What was proposed by Mrs McNamara in the document of 10th August was part-time employment. She could only exercise her right to return to the job that she was originally employed to do under the contract when she left. This was not satisfied by making a submission proposing part-time work. The Tribunal observed that the right to return provisions are complicated, and have to be strictly complied with. The document was not for those two reasons a notice under the section.

	Mr McNamara argued that the Tribunal erred in law in these conclusions. He referred to the statutory provisions and submitted that Mrs McNamara contacted the Company and made a proposal of 10th August, in which she stated that she would like to return to work on a part-time, rather than a full-time, basis. His argument was that the precise wording of the section requires a written notice of a proposed return to work. The notice provisions were adhered to. This is a case in which the Company effectively repudiated her right to return to work, and dismissed her in circumstances where the dismissal was automatically unfair under Section 56.

	We are unable to agree with Mr McNamara that there was an error of law. Our reasons are brief. First, the Tribunal correctly set out and directed themselves on the effect of Section 47(1). Secondly, it appears to us that a tribunal, properly directing itself on the statutory provision and on the terms of the document of 10th August 1992, were entitled to conclude that that document is not an effective exercise of the right to return. In our view, the Tribunal were correct for both of the reasons given for holding that, no proper Section 47(1) notice was served. We are unable to see in the document anything that can be described as a notified day of return within the meaning of Section 47(1). The document reads as more in the nature of set of proposals for negotiation with the Company about the nature of the employment which she would take up with the Company, if she returned to work for them.

	No reasonable employer receiving the document of 10th August would, in our view, recognise it as an effective exercise by written notice of the statutory or contractual right to return to work. 

	On that part of the case, we accept the submissions made on behalf of the Company by Mr Scott that the Tribunal was correct in holding that the provisions should be strictly complied with. They had not been complied with Section 56 did not apply.

	The second area of decision, also criticised by Mr McNamara, was on the question whether Mrs McNamara was dismissed, or whether she resigned. The Tribunal found, as a fact, that she had resigned. They said there was no evidence of any direct dismissal by the Company. She was never told, in so many words, that she was dismissed. They considered the documents and the other evidence. They rejected the contention, which has not been pursued by Mr McNamara on this appeal, that there was a constructive dismissal. They rejected that on the basis that there was no breach of contract, because no contract had ever been arrived at between the parties to take Mrs McNamara as a part-time worker. They commented that she may have been led to believe up until only a short time before 7th September that they might be able to take her back part-time. But they have made it clear in several passages in the Full Reasons that there never was an agreement or contract. She was never promised part-time work, though it was not until 3rd September at a meeting, that she was finally informed that her proposals were not acceptable.

	The Tribunal found that the question of unfair dismissal did not arise because, in all the circumstances, she had resigned. They found that the resignation, whenever it may have occurred, seems to have occurred during the four weeks doctors' certificate, down to 5th October. During that period she could still have given the appropriate Section 47 notice, but had not done so.

	Mr McNamara criticised this conclusion. He faced the initial difficulty that the question whether a person had been dismissed or has resigned is essentially a question of fact, not law, and therefore cannot be the subject of an appeal to this Tribunal.

	Mr McNamara, as we understand it, put the matter two ways. First, he said that the Tribunal had failed to find that there was an express or implied obligation on the part of the Company to clarify the position for Mrs McNamara. He submitted that there was an obligation on the Company to clarify the position, if they did not accept her proposal of 10th August 1992 as the exercise of the statutory right to return. Instead of clarifying the position, the Company led Mrs McNamara to believe that return on a part-time basis would be feasible. They indicated that they would be more than happy to accommodate part-time work. It was only shortly before the agreed date of return that, the Company said that the proposal was not acceptable, despite the fact that Mrs McNamara had at that time acted in reliance on previous discussions and had made appropriate child-care arrangements.

	The essence of the submission was, therefore, that Mrs McNamara was owed a duty by the Company to clarify the position, regarding notification of her return to work. As she had acted in reliance on previous conversations with them, if they subsequently wanted to alter the plans to return to work, they should have clarified the position.

	The second ground on which Mr McNamara criticised the Tribunals' decision was that, what happened at the meeting on 3rd September 1992 was contrary to the conclusions of the Tribunal. Mr McNamara submitted that the contract of employment that his wife had with the company subsisted during the continuance of the maternity leave period. The Company continued to make pension contributions for her, indicating that they understood that the contract was continuing. On 3rd September 1992, it was indicated to Mrs McNamara that, it was no longer feasible for her to return to work on a part-time basis. That was contrary to their earlier contentions. Mrs McNamara indicated, in the course of the conversation, that she was prepared to come back full-time, if part-time work was not possible. But at that stage the Company said that there was no longer a vacancy for her. Other people would suffer if she came back on a full-time basis. The Company indicated they would put a package together, in respect of any claim that she might have. All those circumstances, it was submitted, amounted to a dismissal, not to a resignation.

	Mr Scott submitted that, the question whether there was a dismissal or a resignation was a question of fact. The Tribunal were entitled to come to the conclusions which they did, on the material before them. Therefore there is no point of law on this Appeal. We agree with Mr Scott's submissions. 

	There are clear findings of fact by the Tribunal to the effect that there was no dismissal. It seems, simply referring to the documents before the Tribunal that there was sufficient evidence to entitle them to come to the conclusion that there was a resignation. In those circumstances, there can be no grounds for attacking their decision as being perverse, or unsupported by evidence or contrary to uncontradicted evidence. We have been taken in some detail by both sides to letters passing between the parties, between 4th September 1992 and 2nd October 1992. We do not propose to go through those letters in detail for this reason. It is not our function to decide any question of fact on these documents. Our function is to examine the document to see whether they could support a finding of resignation, rather than dismissal. In our view, those documents alone provide sufficient evidence for the conclusion of the Tribunal. In those circumstances, there is no perversity or error of law in the Tribunal's conclusion on that point.

	The result is that, as there was no dismissal, no question of unfair dismissal could arise. That consequence blocks ingenious arguments made by Mr McNamara in the thorough way in which he had presented his wife's case. He suggested, as alternative routes to success of his wife's claim, that, if Section 56 did not apply, we should consider Section 60 and also Section 55. In support of his arguments, he referred to the following cases: Brown - v - Stockton-on-Tees Borough Council [1988] IRLR 263, Lavery -v - Plessey Telecommunications Ltd [1983] ICR 534 in particular pages 542 and 543, and Hilton International Hotels (UK) Ltd - v - Kaissi [1994] IRLR 270. The problem with the alternative submissions made on the other sections, Section 60 and Section 55, is that Mr McNamara cannot advance his wife's claim, unless there is a finding of dismissal. For the reasons mentioned, the Tribunal found that there was no dismissal. There was no error of law in that conclusion. The alternative routes do not produce any favourable result for Mrs McNamara.

	The final question concerns the allegation of sex discrimination. On this Mr McNamara submitted that his wife had been selected for redundancy purely on the basis that she was on maternity leave. Her dismissal was contrary to the Sex Discrimination Act. He also sought to rely on the Equal Treatment Directive and the Pregnant Workers Directive, even though the employer in this case was not a state employer or an emanation of the state, and therefore the directives have no direct effect against a private employer.

	On this aspect of the case, our conclusion is that there was no error of law in the Tribunal's rejection of the sex discrimination claim. They found that at no time did the company seek to prevent Mrs McNamara from exercising her right to return to work on a full-time basis. That was her statutory right or would have been if she had exercised it correctly. She resigned and was not dismissed. All the evidence that the Tribunal heard as to what happened before she started maternity leave in December 1991, showed that she was treated favourably by the Company. There was no evidence that she was treated unfavourably in any relevant respect.

	The Tribunal commented that in fact there was no specific allegation of discrimination. They examined the questionnaire, which had been answered and to which Mr McNamara has referred to in part. They considered other documents. Their conclusion was that there was no evidence of direct or indirect sex discrimination. On this part of the case we also agree with Mr Scott that there is no valid basis for overturning the conclusion of the Tribunal. All the relevant findings were of fact. There was evidence to support the facts found and the inferences drawn from the evidence. It was not a case of perversity.

	In those circumstances, we have reached the conclusion that this appeal should be dismissed because the criticisms which Mr McNamara makes of the Decision do not identify any error of law on the part the Tribunal.

	Mr McNamara concluded his detailed submissions on the case with a plea for sympathy. He pointed rightly to the complexity of the legislation. He said his wife had always wanted to go back to work. She thought she had an agreement. She had been led to believe that she could go to part-time employment with them. He repeated various allegations made in some of the documents that pressure was applied to her by the employer. 

	It is not for us to comment on these matters. We have to decide cases according to the law, whether, we decide them in favour of an employer or an employee. Each side is entitled to have the law properly applied. We cannot decide cases simply on the basis of sympathy for the disappointment or hardship of individuals, whether they be employers or employees.

	In those circumstances this Appeal is dismissed.

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	Mr Scott made a request for costs under Regulation 34 of the Employment Appeal Tribunal Rules 1993.

	The Tribunal anticipated this application, and we have discussed it. We need not bother you, Mr McNamara. We think that there is considerable difficulty in this application, because, as shown by page 22 of the bundle, this matter did come before the Tribunal as a Preliminary Hearing to determine whether there was a reasonably arguable point. A differently constituted tribunal thought that it was sufficiently arguable to come to a Full Hearing. In those circumstances, it is difficult to say that it was unreasonable or unnecessary for Mr McNamara to pursue his wife's case. This was not an appropriate case for costs.