Appeal No. UKEAT/0082/09/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 May 2009

Before
HIS HONOUR JUDGE McMULLEN QC
MR I EZEKIEL
MR P R A JACQUES CBE

ST ALPHONSUS RC PRIMARY SCHOOL	APPELLANT

MS J BLENKINSOP	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DOMINIC BAYNE
(of Counsel)
Instructed by:
Middlesbrough Legal Services
Middlesbrough Borough Council
PO Box 99A
Town Hall
Middlesbrough TS1 2QQ	
For the Respondent	MR EDWARD LEGARD
(of Counsel)
Instructed by:
Messrs Newbys Solicitors
100 Borough Road
Middlesbrough TS1 2HJ	

SUMMARY
SEX DISCRIMINATION:  Pregnancy and discrimination 
JURISDICTIONAL POINTS:  Claim in time and effective date of termination 

The Claimant was a teacher working half of each term until she became pregnant.  The Employment Tribunal did not err when it found it was not reasonably practicable for her to present her notice of maternity leave within the relevant window.  The employer was refused permission to raise a new point on appeal, not raised by Counsel against the Claimant in person below, relating MAPLE Reg 7(5) (expiry of limited-term contract after maternity leave notice).  The Employment Tribunal was entitled to find that refusal to give back her job, communicated one month in advance, terminated the relationship by dismissal on notice on the date she was due back.  The Claimant had continuous employment, the claim was in time and the findings of discrimination and unfair dismissal were upheld.

HIS HONOUR JUDGE McMULLEN QC
1.	This case is about procedural aspects surrounding a claim of unfair dismissal by a woman who was seeking to return to work after the birth of her child.  It is the judgment of the Court to which all members have contributed.  We will refer to the parties as the Claimant and the Respondent.

Introduction
2.	It is an appeal by the Respondent in those proceedings against a Judgment of an Employment Tribunal chaired by Employment Judge Hudson at Thornaby-on-Tees, registered with Reasons on 26 November 2008.  The Claimant represented herself, but today has the services of Mr Edward Legard of Counsel.  The Respondent has been represented by Mr Dominic Bayne of Counsel, and we will correct the record of the Employment Tribunal Judgment to show that.

3.	The Claimant claimed that she had been unfairly dismissed and discriminated against on the grounds of pregnancy, contrary to respectively Section 99 of the Employment Rights Act 1996 and Section 3A(1) of the Sex Discrimination Act 1975 and the Maternity and Paternity Leave Regulations etc 1999 (“MAPLE”)

4.	The Respondent contended that the relationship had ended upon the coming to an end of a fixed-term contract and that her claim was out of time, for there is a three-month time limit imposed upon presentation of claims to an Employment Tribunal for unfair dismissal (see Section 111).  It is extended where it is not reasonably practicable for the claim to have been presented during the primary time limit.

5.	The Tribunal found in favour of the Claimant.  The Respondent appeals.  I gave directions sending this appeal to a full hearing.

The legislation
6.	The relevant provisions of the legislation are not in dispute. Section 3A Sex Discrimination Act 1975 provides
  “3A(1)	In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if -
(a)  at a time in a protected period, and on the ground of the woman’s pregnancy, the person treats her less favourably…; or
(b)  on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably…
	(3)	For the purposes of subsection (1) -
(a)  in relation to a woman, a protected period begins each time she becomes pregnant, and the protected period associated with any particular pregnancy of hers ends in accordance with the following rules-…
(ii)  if she is entitled to ordinary and additional maternity leave in connection with the pregnancy, the protected period ends at the end of her period of additional maternity leave connected with the pregnancy or, if earlier, when she returns to work after the end of her pregnancy;…

7.	The MAPLE Regulations deal with two concepts, ordinary and additional maternity leave. It should be noted that these are different from the right to maternity pay:
	4(1) An employee is entitled to ordinary maternity leave and to additional maternity leave provided that she satisfies the following conditions 
(a) no later than the end of the 15th week before her expected week of childbirth (or, if that is not reasonably practicable, as soon as is reasonably practicable) the employee must notify the employer of:
(i)	her pregnancy;
(ii)	the expected week of childbirth; and
(ii)	the date on which she intends her ordinary maternity leave to start.

8.	An employer who is notified under Reg 4 is required by Regs 7(6) and (7) within 28 days of receipt of the notice to send a statement informing the employee of the date on which her leave will end.  Then:
“18(2) An employee who returns to work after (a) a period of additional maternity leave … is entitled to return from leave to the job in which she was employed before her absence or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.”

9.	Dismissal ends maternity leave: see Regulation 7(5)
“7(5) Where the employee is dismissed after the commencement of an ordinary or additional leave period but before the time when (apart from this paragraph) that period would end, the period ends at the time of the dismissal.”

10.	Discrimination in various forms is made unlawful by Reg 19. It is unlawful for an employer to subject an employee to any detriment by reason of pregnancy, childbirth, or because she took or sought to take maternity leave or to avail herself of its benefits.

11.	Dismissal is made unlawful by Reg 20:
“20(1)	An employee who is dismissed is entitled under s.99 of the 1996 Act to be regarded for the purposes of Part X of that Act to be unfairly dismissed if -
(a)	the reason or principal reason for the dismissal is of a kind specified in paragraph (3), …
(3)	The kinds of reasons … are reasons connected with -
(a)	the pregnancy of the employee; …
(d)	the fact that she took, sought to take or availed herself of the benefits of …maternity leave;”

12.	The Employment Rights Act 1996 section 99 provides that an employee who is dismissed shall be regarded as unfairly dismissed if the reason or principal reason for the dismissal relates to pregnancy, maternity or maternity leave.

13.	Section 97(1) deals with termination with and without notice and the expiry of what is now known as a limited-term contract. The effective date of termination: 

“ …(cc) in relation to an employee who is employed under a limited-term contract which terminates by virtue of the limiting event without being renewed under the same contract, means the date on which the termination takes effect.”

The facts
14.	The Claimant is a teaching assistant.  The Respondent is a primary school in Middlesbrough which employs about 25 people.  By statute, Middlesbrough Council is in ultimate control under the triangular relationship between teachers, schools and local education authoritities.

15.	The Claimant was engaged originally on 25 January 2006 as a part‑time teaching assistant, but her hours rose and by April 2007 she was on 31 hours a week.  The pattern was that she would work half of each term.  She became pregnant and knew on 19 January 2007 that her baby was expected in July.  In agreed notes of evidence, she said that she found out her expected date, but did not communicate that to Mr Finn, the Headteacher at a meeting which she had with him in February 2007.

16.	The Claimant communicated the expected week of childbirth only when a midwife, who examined the Claimant in May 2007, gave her a form known as a MATB1, which indicates the expected week of childbirth.  The midwife told the Claimant that she would be entitled to maternity pay, and the Claimant then raised this with Mrs Ward, the Bursar of the school.  The communication between the Claimant and Mrs Ward with the form MATB1 occurred between 5 and 18 May 2007.

17.	On 18 May 2007, a conversation took place between the Claimant and the HR department of Middlesbrough, and a person in that department told her that she was entitled not only to statutory maternity pay, but also to maternity leave.  So on that date she signed the appropriate maternity leave form, which gave the expected week of childbirth as 23 July 2007 and her last working day as 25 May 2007.

18.	Shortly thereafter, she was offered a temporary contract for September to December 2007, but she did not wish to accept that because it would follow so soon upon the birth of her child. Her child was born in July.  

19.	On 23 January 2008, there was a meeting between Mr Finn and the Claimant. As she saw it, on 25 February 2008, nine months after the start of her maternity pay entitlement, her money ran out and she would come back to work. He made it clear that she would not be returning to the school on that date.

20.	The Claimant was dissatisfied.  She wrote to Mr Finn on 28 January 2008, saying this:

“As we discussed in our appointment, there is no post for me to return to on 25/2/08.  Therefore, I would like to ask you to put this in writing, stating your reasons for this.  I would be grateful if you would post this out in the next 14 days so I can seek further advice.”

21.	It did not elicit a reply until 26 February 2008 as follows,

“The reason that there is not a post for you to return to is that you indicated, in a letter dated 22 May 2007, that you would not be returning to work in school.  Also, prior to the commencement of your maternity leave you were offered a temporary contract from September to December 2007 however you responded in a letter, also dated 22 May 2007, that you were unable to accept this offer.
If at any time in the future the School has a vacancy you are welcome to apply.”

The Claimant claimed that she had been dismissed on 25 February 2008 when effect was given to Mr Finn’s determination of 23 January 2008 that there would be no job for her at the end of her leave on 25 February 2008.

22.	The Claimant lodged a claim on 2 May 2008.  It was more than three months after the meeting on 23 January 2008, and almost a year after her last working day 25 May 2007.  It was, however, within time if her effective date of termination of employment was 25 February 2008.

23.	The Employment Tribunal decided a number of issues by reference to the MAPLE Regulations.  First, it decided that the Claimant was in compliance with Regulation 4. It excused the delay by reference to the reasonable practicability clause, which operates, it is common ground here, in the same way as section 111 Employment Rights Act 1996 does for unfair dismissal. It gave these reasons,

“5.5	The Tribunal then turned to when the notification of this point was reasonably practicable.  The Tribunal noted that the claimant had no written contract of employment or statement of terms to inform her of her rights and obligations.  Had she had one, and a copy of the respondent’s maternity policy which appears at pages 20-32 of the bundle, she would have seen what she was expected to do, at page 22.  It was not reasonably practicable for the claimant to inform the respondent of the date of the start of her ordinary maternity leave, when she did not know that she was entitled to it until some time in early May 2007, after Mr Finn had said that he did not think she would be entitled to maternity pay as she was on supply.  The claimant was misled into believing that she was some sort of casual employee with uncertain employment rights, by not being given a written contract, by the casual way in which arrangements for her work were made, and by Mr Finn’s suggestion that she would not be entitled to maternity pay.  The respondent cannot rely on her confusion and delay against her, when that situation was caused by the respondent.  The Tribunal found that the claimant informed the respondent of the date when maternity leave would start, as soon as was reasonably practicable and was entitled to 26 weeks of ordinary maternity leave, followed by 26 weeks of additional maternity leave.”

24.	The Tribunal held that she began maternity leave on 25 May 2007, pursuant to the statutory regime and came to this conclusion in respect of the events in January 2008,

“5.8	Regarding whether the claimant was dismissed, and if so when, at a meeting in January 2008, the claimant asked for her position back.  Mr Finn told her that this post was no longer available, because she was only ever on supply.  The claimant asked in writing for reasons and a reply was dated the day after the claimant intended to return to work.  The claimant sought legal advice.  The respondent indicated its intention not to allow her to return to her previous post at the meeting on 23 January 2008.  The claimant was then aware for the first time that her continued employment with the respondent was in some doubt.  The termination of her employment was communicated to her when she read the letter of 26 February 2008.  Her employment was terminated when she was not allowed to return to work on her communicated return date, which was 25 February 2008.  The claimant was dismissed by the respondent on that date.  The letter confirmed that state of affairs.”

25.	Its ultimate conclusion was that the Claimant had sufficient continuity of employment on 25 February 2008, when she was denied the opportunity to return on her chosen date of return, It found in favour of the Claimant on her claims of unfair dismissal and discrimination on the grounds of pregnancy and maternity, leaving the parties to seek a further date on which to deal with remedies.  That has not yet occurred.  

The Respondent’s case
26.	It had been conceded at the Employment Tribunal that the Claimant had unbroken continuity of employment from the start of her work until 25 May 2007.  That is because her absenses during term and holidays were regarded as temporary absences for the purposes of the Employment Rights Act Part XIV relating to continuity applying  Ford v Warwickshire [1983] ICR 273 HL

27.	The Tribunal had erred in holding that the Regulations applied because the Claimant had not complied with the regime set up by MAPLE Regulations, nor was the Respondent given the opportunity to argue against the Claimant’s contention that it was not reasonably practicable for her to comply.

28.	The Tribunal had failed to consider MAPLE Regulation 7(5) and Section 97(1)(cc) Employment Rights Act 1996, the limited-term contract point.

29.	It was contended that the Claimant could not have been dismissed on her case until 26 February 2008, when communication of the decision was made to her.  On the authorities, such communication must precede a dismissal.  In any event, the combined effect of Section 97 and Regulation 7.5 is that maternity leave cannot survive the cessation of the relationship which occurred on this basis in May 2007.

30.	It is expressly accepted that the findings are not perverse.  The objection is that no opportunity was given to the Respondent to deal with this matter.

The Claimant’s case
31.	On behalf of the Claimant, it is contended that the Tribunal made findings which are clear and firm.  There was blatant sex discrimination, a depiction not disputed by Mr Bayne.  The Tribunal had material upon which it could form the view that the Claimant found it not reasonably practicable to present her notice in accordance with MAPLE until she knew of her rights and it was an issue to be decided by the Employment Tribunal from the outset.

32.	As to Section 97(1) and Regulation 7.5, the limited-term point, this was a new point not raised at the Employment Tribunal.  It should not be raised at the EAT and would require further findings by the Employment Tribunal.  In any event, the Respondent had not contended for its now fallback position, which was 23 January 2008, as being the relevant date.

The legal principles
33.	The legal principles can be described by reference to the following authorities. In Nu‑Swift International Limited v Mallinson [1978] IRLR 537 Slynn J (President) and Members said this in relation to earlier authority: 
“15. In Dedman v. British Building & Engineering Appliances Ltd.  [1974] I.C.R. 53, Lord Denning M.R. stressed that there should be a liberal interpretation of the word "practicable" (and at that stage it was "practicable" in the legislation and not "reasonably practicable"). Lord Denning M.R. said, at p. 61:
‘It is difficult to find a set of words in which to express the liberal interpretation which the English court has given to the escape clause. The principal thing is to emphasise, as the statute does, 'the circumstances'. What is practicable 'in the circumstances?' If in the circumstances the man knew or was put on inquiry as to his rights, and as to the time limit, then it was 'practicable' for him to have presented his complaint within the four weeks, and he ought to have done so. But if he did not know, and there was nothing to put him on inquiry, then it was 'not practicable' and he should be excused.’ 
19. In the present case it is, we think, relevant to have regard to the fact that there was no issue about the employee's knowledge of her rights. …. The position, on the facts found by all the members of the industrial tribunal, is that at the relevant time she really did not know whether she would want to come back to work or not, and that if she had to come down on one side or the other, she would clearly have said that she did not intend to go back to work. …
21.  … at the end of the day, we have to ask ourselves whether this appeal tribunal on the material before it, by the majority, has properly directed itself or has arrived at a conclusion which it could reasonably reach.  In our view, on the findings of fact which have been made by the industrial tribunal, it is quite clear that if she had wished to give the notice she could have done so.  Had she made up her mind, she knew of the provisions of the legislation and of the requirement to give a notice, and it seems to us that if she had known her mind at that stage the notice could have been given without any difficulty whatsoever.  There is nothing to suggest to the contrary.” 

That indicates that a person making a conscious decision not to put in a notice is not entitled to a finding that it was not reasonably practicable to do so.  

34.	Generally speaking, when dismissal without notice occurs, the effective date of termination is precisely when that occurs; see Octavius Atkinson and Sons Limited v Morris [1989] IRLR 158 CA, where Sir Nicholas Brown‑Wilkinson V-V, gave a judgment with whom Parker and Russell LJJ agreed, and said this: 

“Turning, then, to the narrow point that was in issue in this case between the parties I have no doubt that the employment ceased when the applicant was dismissed (as the industrial tribunal held) without notice at lunchtime on 29 August. Dismissal is either with or without notice. If it is without notice it must constitute either an immediate termination of the contract or an immediate repudiation by the employer, accepted (on the admission made in this case) by the applicant when he left the site. To say that notwithstanding such summary dismissal the employment in fact lasted after the dismissal is to say that the dismissal was not summary but on short notice, such notice terminating the employment, according to choice, at the end of the working day, on the applicant's return home, actual or deemed, or at midnight. But one thing is clear in this case, namely, that what took place on the site at Snow Hill was a summary dismissal without notice. In my judgment, it must follow that both the contract of employment and the status of employee ended at the moment on which the dismissal was communicated.” 

35.	Where a teacher is involved, a dismissal can occur, even though it does not occur at the normal time for the giving of notice, such as at the end of a term or at the end of a holiday; see Hogg v Dover College [1988] ICR 39, where Garland J and Members said this:

“Up to 31 July, the applicant, who was well and sympathetically treated by the employers, was head of history; he was employed to teach full-time at a full salary plus such allowances to which he was entitled. On 31 July, he was told that he was no longer head of history; that he would not be employed full-time and he would come down to eight periods a week plus general studies and religious education; that the salary he would receive would be exactly half the new scale which superseded the Burnham scale.
It seems to us, both as a matter of law and common sense, that he was being told that his former contract was from that moment gone. There was no question of any continued performance of it.”  

36.	A point should not be raised on appeal to the EAT unless it has been canvassed below, or there are exceptional reasons; see a long range of EAT jurisprudence approved by the House of Lords in Celtec v Astley [2006] IRLR 635 approving a judgment I gave in Leicestershire City Council v Unison [2005] IRLR 920.

37.	It is an elementary principle of natural justice that a party should be allowed to address the Tribunal on an issue which is before it; see Market Force UK Limited v Hunt [2002] IRLR 863, Mr Recorder Langstaff QC (as he then was), and Members. but not in every case is a Tribunal to be condemned when it forms a judgment on a matter which is not put to it expressly by either party, provided there is material on it; see Woodhouse School v Martin Webster [2009] EWCA Civ 91 per Mummery LJ: 
“38. There is, in general, no procedural unfairness or injustice in the ET making findings based on evidence before the ET, if the parties have had a fair opportunity to address submissions to the tribunal on the substance of the evidence and if there is no real possibility that further submissions would have made any difference to the outcome.”   

The Court of Appeal there followed earlier authorities of the Court of Appeal, Judge v Crown Leisure [2005] IRLR 823 and Kuzel v Roche Products Limited [2008] IRLR 530.

Discussion and conclusions
38.	We prefer the arguments addressed by Mr Legard.  The first issue is to decide whether the Respondent was given a fair crack of the whip in relation to the issue of reasonable practicability.  It is true that the Claimant was under a duty to put forward some reasons as to why she was late in presenting the notice under the MAPLE Regulations.

39.	In our judgment, the Employment Tribunal committed no error.  Reasonable practicability as a reason for extending a deadline was expressly an issue to be determined in this case.  The Respondent took the jurisdiction point knowing well that if the claim were out of time, the Claimant could rely upon it not being reasonably practicable for her to comply.  Those are issues which are expressly set out in paragraphs 2.1(a) and (d) of the Tribunal’s Reasons.  Written submissions were given by both sides, albeit the Claimant was unrepresented.

40.	The passage which we have cited plainly corresponds to evidence which the Employment Tribunal was given and it does indicate in the simplest terms that the Claimant would not find it reasonably practicable to present a notice in accordance with MAPLE at that time. She did not know she was entitled to pay or leave.  These are robust findings against the Respondent.  The indication given to the Claimant by Mr Finn that she was an atypical worker plainly caused confusion to her and we see no error in the Tribunal’s finding that it was not reasonably practicable until she was enlightened for her to give the requisite notice, which she did promptly.  That being so, the Claimant was entitled to the protective regime for both pay and leave provided by MAPLE. The Respondent had an opportunity to argue the point and it was correctly rejected on the merits.

41.	Her last day of work was notified to be 25 May 2007.  It is implicit in the adoption of words such as “maternity leave” that the Claimant is to return to work.  She told the Tribunal that she would return to work, but not as early as September 2007, which was the day she was first asked, because it would occur only five weeks or so after the birth.  But it does indicate a continuing intention by the Respondent to keep her on and the Claimant to go back once the period of maternity leave and/or maternity pay was up.

42.	As to the Respondent’s contention that this claim was regulated by the limited-term contract provision MAPLE Reg 7(5), we refuse permission for this point to be raised.  The issue in the case was plainly about the interrelationship between a worker in a teaching environment, with long holidays, and in her case, with breaks even during the term.  The Respondent correctly conceded continuity of employment during the period up to 25 May 2007.  The Respondent argued that it gave notice before the leave began. This case was focused on the issue of notice of termination. In our judgment, the Respondent ought to have raised squarely Regulation 7(5) and Section 97(1)(cc) if it were to rely on them.  

43.	This is not a question of hard‑edged law. It requires additional findings from the Employment Tribunal as to the nature of the relationship and one has only to look across at the way in which women in the educational sector have had their claims dealt with following the judgment of the European Court in Preston [2004] ICR 993 in order to understand that a stable employment relationship or some bridging provision could continue.  There was no indication, in our case, that the Claimant was leaving irrevocably, or that an ostensibly limited‑term contract would breach any continuity provisions that she might have or that she was under notice.

44.	All of those would need to be found by the Employment Tribunal, its task having been made easy by the concession the employers made relating to the period until May 2007.  So we will apply Celtec v Astley and not allow the point to be raised on appeal. Nor do we think that this is a good point either if we were to decide this ourselves, for the reasons which we have given on the scant material available to us.

45.	That then leaves the bridge to January 2008.  The Tribunal has made findings.  In our judgment, one construction of the events which occurred at the meeting between the Claimant and Mr Finn was that Mr Finn made plain that the relationship would cease at a date in the future.  The date was 25 February 2008.  As the Claimant herself said in her claim form, the Respondent made a mistake about its response, indicating, we hold, that the relationship ceased in May 2007.  But there was no contention before today that the relationship ceased on 23 January 2008.  It did not.  It was, we hold, the giving of notice by Mr Finn to the Claimant. She was entitled to two weeks’ notice. We understand by statute that her employment would cease on 25 February 2008, some four weeks later, at a time which coincided with the ending of maternity pay and her due return to school.

46.	The Claimant wanted further reasons than were given to her on the date of the meeting. There was no post for her to return to, and further reasons were given in the letter of 26 February 2008.  By that time, the relationship was over, for dismissal occurred at the time when performance was required by the Respondent of the contract, which was to allow her back and to pay her.  So in those circumstances, the authorities cited to us relating to communication and to dismissal without notice do not assist.  This was, as we have held, a dismissal on notice of four weeks or so; the reasons for it being given on that date and confirmed in writing after the termination.  As both sides said, nothing actually happened on 25 February.  The Claimant did not turn up for work.  Presumably she was relying upon the fact that there was no work for her and she was not paid from that date.

47.	It thus follows that the presentation of the claim on 2 May 2008 was within the three months required and requires no extension.  If we are wrong in our analysis and Mr Bayne is correct that the date was 23 January 2008, there was material here upon which the Claimant could contend that it was not reasonably practicable, or alternatively the Employment Act 2002 Dispute Resolution Regulations might have come to her assistance by Regulation 15(2).  It is not necessary for us to make a decision about that in the light of our finding, but it would be a contention which would have much force.  After all, the Employment Tribunal did consider, presumably on the Respondent’s case, the application of the 2004 Regulations.

48.	We see no error in the Employment Tribunal’s reasons, which were essentially on procedural grounds, and the appeal will be dismissed.