Law report: Physical presence at work was not necessary

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Crees v Royal London Mutual Insurance Society Ltd; Greaves v Kwik Save Stores Ltd; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Aldous and Lord Justice Mummery) 27 February 1998

AN EMPLOYEE who had the right to return to work after maternity leave exercised that right by giving the requisite written notice to her employer, and actual presence at work on the notified day of return was not necessary.

The Court of Appeal allowed the appeals of Heather Crees and Janet Greaves against decisions of the Employment Appeal Tribunal that they had not been unfairly dismissed by their employers.

Laura Cox QC and Damian Brown (Thompsons) for the appellants; Elizabeth Slade QC and Peter Oldham (Legal Director, Royal London Insurance) for Royal London; David Richardson (Bullivant Jones & Co, Liverpool) for Kwik Save.

Lord Woolf MR said that the issue in the two test cases was whether a female employee who had been on extended maternity absence from work lost any right to remain in her employment if, as a result of illness, she was unable to carry out work on the notified day of return, thus entitling her employer to treat her employment as having come lawfully to an end, or whether the employer was to be treated as if he had dismissed her, thereby incurring liability for unfair dismissal.

Each appellant had a contract of employment containing express provisions relating to maternity leave and to the right to return to work; had given appropriate written notices informing the employer of the expected week of childbirth and the date on which she intended maternity leave to commence; had gone on maternity leave, then taken extended maternity absence from work; had given to the employer an appropriate notice of the day of the proposed return to work and had then obtained, as allowed by statute, a four-week extension of the date for return to work; and had, due to temporary illness, been physically unable to return to work on the notified day of return.

In each case the Employment Appeal Tribunal had upheld the employer's claim that the employee had not exercised the right to return to work; that the contract of employment had come to an end; and that there had been no dismissal of the employee giving rise to a claim for unfair dismissal.

The correct approach to the construction of statutory provisions which conferred the right to return to work after maternity leave was to be found in Brown v Stockton-on-Tees Borough Council [1989] AC 20, in which Lord Griffiths had said that the inconvenience to an employer of keeping a woman's job open for her during her absence to have a baby was "the price that had to be paid as part of the social and legal recognition of the equal status of women in the workplace".

In order to benefit from the right to return to work a woman had to exercise that right. The provisions of section 42 of the Employment Protection (Consolidation) Act 1978 did not expressly require an actual return to work on the notified day of return for the exercise of the right to be complete and effective. The right was exercised by the employee's giving written notice to the employer in accordance with section 42(1). The process of exercising the right to return to work was thus complete before the notified date of return actually arrived.

An employee who had the right to return to work and had exercised that right in accordance with section 42 of the 1978 Act, but whose employer had not permitted her to return to work, was, by reason of section 56 of the Act, treated as if she had been dismissed for the reason for which she had not been permitted to return. If that reason was that she did not have the right to return when she did in fact have that right, that would not be a potentially fair reason for dismissal falling within section 57(2) of the Act.

Both appellants had, accordingly, been unfairly dismissed.

Kate O'Hanlon, Barrister