Appeal No.	 EAT/789/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 November 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR L D COWAN
MS B SWITZER

MISS S KING	APPELLANT

THE HUNDRED OF HOO NURSERY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR M KALLIPETIS QC
(ELAAS)	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to determine whether Miss King has an arguable point of law in an appeal against a decision of an Industrial Tribunal held at Ashford in Kent on 27th March 1997. By that decision the tribunal unanimously concluded that the applicant, Miss King, did not have the right to return to work following childbirth, and that her claims for unfair dismissal and sex discrimination were dismissed.

	Briefly, Miss King conceived a child. For a variety of reasons, she did not wish to disclose her pregnancy until the last minute. She sensibly did disclose it very late in her pregnancy and had her baby within a very short period of time thereafter. 

	At the relevant time she was employed by the respondents as a nursery nurse from whom she could reasonably have expected considerable support and sympathy.

	She did various things in relation to the possibility of her coming back which are set out in the findings of fact made by the Industrial Tribunal. 

	It was with considerable reluctance that the Industrial Tribunal dismissed her complaint. It was their view that there had been a technical failure to comply with the requirements of s.80(1) of the Employment Rights Act 1996 which thereby disentitled her to the right to return to work granted by the pregnancy scheme.

	The second conclusion they arrived at was that as she did not have the right to return under the statute she could not have been dismissed. 

	Mr Kallipetis QC had persuaded us, and we were very receptive to being persuaded, that there are two distinctly arguable grounds of appeal. The first is that the Industrial Tribunal have misunderstood the very complicated provisions relating to maternity rights in the statute; and that indeed, they have misdirected themselves as to her statutory entitlement to return to work. Essentially the point relates to whether an oral notification that somebody wishes to return to work is capable of fulfilling the requirements in s.80(1); and secondly, whether there is a time point in relation to the moment at which such notification must be given if an oral notification is permissible.

	The second ground of appeal relates to the way the tribunal dismissed the applicant’s complaint of unfair dismissal. Mr Kallipetis would say that the statement that because she did not have a statutory right to return she could not have been dismissed, has no foundation in law. It seems to us important that this Court should look at the statutory maternity rights scheme, and how it should be applied to the very difficult facts in this case; and secondly, it seems to us, to be distinctly arguable that the tribunal have not properly considered her claim for unfair dismissal.

	On those two grounds the matter must go forward for a full hearing. This is a case where we shall respectfully invite the tribunal to provide us with the Notes of Evidence, because there are certain findings made in this case which are potentially ambiguous, and it seems to us, that notes of the whole of the evidence would be extremely helpful. In making this request, we should indicate that we are mindful of the problem that a request such as this causes to the learned Chairman, and we would ask his indulgence in this case. The case itself, we understand, lasted for one day, and we hope that the burden upon him will not be too considerable.

	I would like to retain this case for myself. I regard it as potentially important. I would list this for a whole day.