Appeal No. EAT/1410/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 May 2002

Before
HER HONOUR JUDGE A WAKEFIELD
MR J R CROSBY
MR D NORMAN

MISS N PAYNE	APPELLANT

GRESHAM DENTAL CLINIC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR B UDUJE 
(of Counsel)
Instructed by:
Messrs Fisher Meredith
Solicitors
1 Binfield Road
London SW4 6TA	
For the Respondent	MR G BIGNELL
Solicitor
Just Employment
Solicitors & Advocates
Castle House
Castle Street
Guildford
Surrey GU1 3UW	

JUDGE A WAKEFIELD

1	This is an appeal by Miss Nicola Payne against a Decision of an Employment Tribunal sitting at Croydon by which her complaints of unfair dismissal, discrimination on grounds of her sex and breach of contract, being a failure to award a pay rise, were dismissed.  The appeal is confined to the findings of the Employment Tribunal as to unfair dismissal.  

2	The findings of the Tribunal, on facts which are not challenged and as relevant to this appeal, were that the Appellant, having been on maternity leave, gave notice of her intention to return to work on 20 July 1998.  She had, before taking maternity leave, been employed as Head Nurse at the Respondent’s dental practice, working from Monday to Friday, 9.30 - 6.00.  Because of sickness, she was in the event not able to return to work on 20 July but she did go back on 8 August, in a different position and for different hours, these having been agreed by the Respondent to fit in with the Appellant’s child care arrangements.  It was further agreed that when the Appellant wanted to return to her usual job she would give four weeks notice of that intention to the Respondent.  

3	On 26 November 1998, the Appellant wrote to the Respondent as follows:
“I would like to give you my notice to finish evenings and Saturdays.
My last evening being Thursday 24 December 1998 and last Saturday 19 December 1998.
I want to start full time again Monday to Friday 9.30 - 6.00 pm, Monday 28 December 1998.”

In the meantime, however, the Respondent’s requirements for staffing had changed and all the staff had been consulted and a new draft rota had been organised.  The Respondent therefore wrote to the Appellant as follows:
“I acknowledge receipt of your notice received 30 November 1998 to cease working your present hours as from 24 December 1998.

Monday - Friday 6.00 pm - 9.00 pm, Saturdays 9.30 am - 3.30 pm.
As you recall you requested these hours of employment on return from maternity leave as you could not return to your full time position.
I appreciate your request to return to full time employment and can offer you the following hours.
Monday	9.30 am - 6.00pm
Tuesday	3.00 pm - 9.00 pm
Wednesday	9.30 am - 6.00 pm
Thursday	2.00 pm - 9.-00 pm
Friday 	9.30 am - 6.00 pm.”
And then the total hours and the gross pay are set out and the letter continued:
“Yours duties would also remain the same, i.e Nursing, Administration and Reception work. Your full time employment would commence 29 December 1998.
I hope that you will accept and remain in our employ.  A written reply is requested by 9 December 1998.”

4	Having received that letter, the Appellant resigned by letter dated 8 December.  In these circumstances the Employment Tribunal found as regards the Appellant’s statutory maternity rights the following, in paragraphs 22 and 23 of the Decision:

“22  The Tribunal had regard to the Applicant’s submission that she had a right to return to her job of head nurse, at any time, upon giving notice to the Respondent.  The Tribunal finds that the Applicant had a statutory right to return to work as head nurse, but that this right had expired by 8 November 1998.  By the operation of section 79(1) Employment Rights Act 1996 the Applicant had a right to return to work in the job that she had before her maternity leave.  However, the Act does not give an employee the right to delay exercising her right to return for an indefinite period.  The right to return to work subsists during the period beginning at the end of the maternity leave period and ending at 29 weeks after the beginning of the week in which childbirth occurs.  In the Applicant’s case, since her child was born on 24 April 1999, the beginning of the week for the purpose of section 79(1), was the 20 April 1999”
 [I think those dates should be April 1998]  
“The twenty nine weeks period during which her right to return, to her job of head nurse, was protected expired on Sunday 8 November 1998.  
23.  The Applicant had not exercised her right to return to her original job by 8 November 1998, and therefore the Tribunal finds that she was not able to rely on her statutory right to return to work after 8 November 1998”

The Tribunal then concluded that the letter of 2 December from the Respondent to the Appellant announced a unilateral change to the contractual terms, that this was a breach of contract and that the Appellant had therefore been entitled to resign in consequence, that is to say she was constructively dismissed.  

5	As to the fairness of the dismissal, the Employment Tribunal then went on in their paragraphs 27 and 28 to conclude as follows:
“The Respondent satisfied the Tribunal that the reason for the dismissal was the Respondent’s need to restructure its surgery hours, in order to ensure that the hours the surgery opened to its clients met with their needs and the exigencies of the business.  We find that that is a reason which may found a fair dismissal within the meaning of section 98(4) of the Act.  
28.  The Tribunal now turns to consider whether the dismissal was fair or unfair within the meaning of section 98(4) Employment Rights Act 1996.  The Tribunal finds that the respondent had identified a need to alter its opening hours.  The exigencies of the business were the Respondent’s paramount consideration.  The Applicant was consulted about the needs of the business for her to work different hours.  It is not for the Tribunal to interfere with the reasoned and reasonable business decisions of the Respondent.  The Applicant could not accept the new hours, and the Respondent had no feasible option available to it at that point in time.  Therefore, the Tribunal finds that the decision to dismiss the Applicant was fair and reasonable in all of the circumstances.”

6	The grounds of the appeal before us are twofold: firstly, that the Employment Tribunal were wrong to find that the Appellant’s statutory right to return to work after maternity leave had expired by 8 November 1998 and therefore that she was not thereafter entitled to exercise that right and secondly, that the finding that the Respondent had no feasible option available, so far as requiring the Appellant to accept the new terms was concerned, was a perverse finding on the evidence.  

7	As to the first ground, we have been referred to the Decision of the House of Lords in the case of Halfpenny -v- IGE Medical Systems Ltd [2001] IRLR 96.  We have also considered the statutory provisions which are relevant to the present appeal, being sections 78, 79 and 82 of the Employment Rights Act 1996.  The relevant parts of those sections, it appears to us, are as follows, first of all section 78(1):

(1) An employee who has both the right to maternity leave under section 71 and another right to maternity leave (under a contract of employment or otherwise) may not exercise the two rights separately but may, in taking maternity leave, take advantage of whichever right is, in any particular respect, the more favourable.”
Section 79(2), in part, and as relevant, reads:
“An employee’s right to return to work under this section is the right to return to work with the person who was her employer before the end of her maternity leave period, or (where appropriate) his successor, in the job in which she was then employed -”
and it then sets out that the terms and conditions must not be varied.  
Section 82(1) provides:
“An employee shall exercise the right conferred by section 79 by giving written notice to the employer …….. at least twenty one days before the day on which she proposes to return of her proposal to return on that day ….”

8	In the Halfpenny case, Lord Browne Wilkinson said, at paragraph 28 of the speeches, the following:
“In my judgment, the ‘return to work’ consists of an act or acts by the employee consistent with the due performance by her of her revived contract of employment.  In the normal case this will require her to attend for work physically.  But if the circumstances are such that contractually she would not be bound to be physically present on that date and she demonstrates that she was on that day acting in accordance with her contractual rights and duties, that constitutes a return to work.  Thus if her attempt to get to work is physically prevented by, for example, an accident, transport strike or weather conditions, she would have returned to work within the meaning of the statute.  So if she is ill, informs her employer of the fact and presents the certificates required by her contract of employment, she will nevertheless have returned to work on that date.”

We are satisfied, on the basis of the unchallenged findings of fact by the Employment Tribunal, and in accordance with the then prevailing statutory provisions just referred to and the case of Halfpenny, that on 20 July the Appellant exercised her statutory right to return to work.  Thereafter she had only such rights as were contractual and, as the Employment Tribunal found, the Respondent had been in breach of those rights in making the requirements of her which they did by their letter of 2 December.  

9	The dismissal is not, therefore, automatically unfair, as having been in breach of the statutory maternity right to return to work.  Although the reasoning of the Employment Tribunal was wrong, in the light of the Halfpenny case, the ultimate conclusions that the Appellant’s rights and the question of unfair dismissal were respectively contractual and under section 98 of the Employment Rights Act were correct.  

10	As to the second ground of appeal, we have been referred to the Chairman’s Notes of Evidence on the question of there being “no feasible option” but to insist on the new rota for the Appellant.  The stumbling block at the time was apparently the Tuesday hours of 2 - 9 pm.  It is said on behalf of the Appellant that the evidence before the Employment Tribunal showed that another employee, Mrs Babb, would have been willing to change her hours of work so that the Appellant’s wishes could be accommodated.  In our view, the Chairman’s Notes of Evidence do not demonstrate that.  There are references in that evidence, by two of the Respondents’ witnesses, to Mrs Babb which tend to indicate that she was, or may have been consulted, but was unwilling to change her hours.  The only positive references to a willingness of Mrs Babb to alter her hours came in the Appellant’s own evidence and that, as before us, is as follows:
“There were other members of staff qualified to work evenings.  Day time reception and nurses who could double up as receptionists - P Babb.
No approach was made to Babb.  But in December she approached Mrs Start.  She offered to speak to Mrs Start about doing the Tuesday.  She did offer.  Mrs Start turned her down.”

And in cross-examination there was a question:
“ You said P Babb may have been able to do Tuesdays, but she was a nurse.”

To which the Appellant had replied:
“ I know that but it is easier to replace a nurse in evenings than a receptionist in the evenings.  Practice could have employed a nurse to replace Patricia.  Mrs Start turned down Mrs Babb straight away.”

This evidence was, of course, hearsay and was otherwise unsupported.  Mrs Babb was not called.  

11	The Employment Tribunal heard all the evidence and was able to assess the witnesses and the weight of that evidence.  It is impossible for this Employment Tribunal to say that the Employment Tribunal’s findings on the matter were against the weight of the evidence, or were perverse.  In all the circumstances, this appeal is dismissed.