B R J Working Mens Club v Morrison [1992] UKEAT 630_91_2110

EAT
B R J Working Mens Club v Morrison
[1992] UKEAT 630_91_2110 · 1992-10-21
MR JUSTICE KNOX: This is an appeal by B R J Working Mens Club from a Decision of the Industrial Tribunal sitting at Bedford on the 11th September 1991 which was sent to the parties on the 30th September. The Industrial Tribunal unanimously decided that Mrs Morrison, the Respondent before us, had complied with Section 64(1) of the Employment Protection (Consolidation) Act 1978, which I will call "the 1978 Act" and secondly, that the Tribunal had jurisdiction to hear her complaint of unfair dismissal. This is a preliminary issue whether there is the necessary two years continuous employment which is a pre-requisite, under Section 64(1) of the 1978 Act, for bringing proceedings for unfair dismissal. The Industrial Tribunal held that she did have that period of continuous employment and the issue before us is whether there is an error of law leading to that conclusion being wrong.The basic facts were found in some respects by agreement between the parties, in other respects, as a result of the Industrial Tribunal hearing Mrs Morrison's evidence and her being cross examined, and they can be stated as follows.Mrs Morrison's evidence which was accepted by the Industrial Tribunal was that she entered employment as a barmaid with the Club in July/August 1988. For reasons that will appear in a moment it does not matter which month was the correct one. The Industrial Tribunal found as a fact, and this was a disputed fact, that she was employed under a contract of employment which normally involved employment for 16 hours or more weekly and that means that that period of employment at the outset of her employment fell within paragraph 4 of the 13th Schedule to the 1978 Act which governs the computation of periods of employment, for the purposes of (inter alia) Section 64. That paragraph reads:
"Any week during the whole or part of which the employee's relations with the employer are governed by a contract of employment which normally involves employment for sixteen hours or more weekly shall count in computing a period of employment."
So that initial period of Mrs Morrison's employment counted for this purpose.The next relevant event is that Mrs Morrison left, because she was pregnant, on the 15th November 1988. That was a matter which was conceded, very properly, on behalf of the Club by Mr Bailey, who appeared both below and before us. It is recorded in the first sentence of paragraph 3 of the Industrial Tribunal's decision.The next event is that Mrs Morrison resumed work on the 7th May 1989, the following year. The period between those two dates, the 15th November 1988, and the 7th May 1989, is just under 26 weeks, it is some 25 weeks less one day. Under Section 45(1) of the Act there is a definition of the way in which the right to work of an employee who has been absent from work wholly or partly because of pregnancy or confinement is to take effect. But that pre-supposes that that employee does indeed have the right to work through absence because of pregnancy or confinement. And those rights are contained and defined by Section 33 of the 1978 Act which, first of all confers a general right to return to work, in subsection (1) that reads:
"An employee who is absent from work wholly or partly because of pregnancy or confinement shall, subject to the following provisions of this Act, - (a). . . (b)be entitled to return to work."
But that general right is qualified, notably by subsection (3)(b), which reads as follows:
"(3) An employee shall be entitled to the [right] referred to in subsection (1) whether or not a contract of employment subsists during the period of her absence but, subject to subsection (4), she shall not be so entitled unless - (a) . . . (b)she has at the beginning of that eleventh week been continuously employed for a period of not less than two years; . . ."
the eleventh week referred to is the eleventh week before the expected week of confinement. So that unless one has not less than two years continuous employment, one does not have the right to return to work conferred in general terms by Section 33(1) of the 1978 Act. I should add that subsection (4) is not relevant to this case and I need not go into it.Therefore, when Mrs Morrison resumed work, as it was found that she did, on the 7th May 1989 she did so not because she had a statutory right to do so but because the Club took her on again. She then continued to be employed until her employment terminated in April 1991 and it is perfectly clear that Mrs Morrison did not have the necessary two years if she could not count the period when she was away expecting her baby, and having had it, together with the period before she left in November 1988. Whereas, if she can count the whole of the period from July/August 1988 until she was dismissed she equally obviously does have the necessary two years. So the question was, whether that period when she was away, initially because she was pregnant and subsequently because of the confinement, can be counted. This, as we see it, turns on paragraph 9(1) of the 13th Schedule to the 1978 Act, which reads:
"If in any week the employee is, for the whole or part of the week - (d) absent from work wholly or partly because of pregnancy or confinement, that week shall, notwithstanding that it does not fall under paragraph 3, 4 or 5, count as a period of employment."
Pausing there for a moment, as the heading to that paragraph indicates, this is dealing with periods where there is no contract of employment and that is the fact that causes it not to fall under paragraph 3, 4 or 5. That was Mrs Morrison's case because when she left on the 15th November 1988, her employment at that stage ceased and therefore the hypothesis upon which paragraph 9(1)(d) operates is one which was fulfilled. She did not come within paragraph 4.There is a time limit placed upon the extent to which a woman can rely on such a period by sub-paragraph (2) which, so far as relevant, reads:
"Not more than twenty-six weeks shall, subject to paragraph 10, count under paragraph (d) of sub-paragraph (1) between any periods falling under paragraph 3, 4 or 5."
and that clearly applied to Mrs Morrison so that she had a limit of 26 weeks that she could use or rely on under paragraph 9(1)(d) of the 13th Schedule. Fortunately for her the period when she was away, initially because she was pregnant, was only just short of 25 weeks and was undoubtedly short of 26 weeks, and that, as it seems to us is all that she has to show to establish her entitlement to add together first the period from July/August 1988 until she left in November 1988, secondly, the period while she was away of 25 weeks, until the 7th May 1989, and thirdly the period from when she came back until she was dismissed in April 1991 and if you can add those three together, as I said earlier, you clearly have two years continuous employment.It is perfectly true when one comes to read the Industrial Tribunal's decision that they mentioned, and must have placed some reliance, on what seems to us to be a wrong interpretation of Mrs Morrison's entitlement to rely on Section 45(1) of the Act. They record, but this was challenged by Mr Bailey as being an accurate statement of his attitude before the Industrial Tribunal, that at the hearing before the Industrial Tribunal Mr Bailey, on behalf of the Respondents, did not dispute Mrs Morrison's statement that she was working for the Respondents until the end of November 1988 and then left because of pregnancy, (that Mr Bailey did accept) but they also go on to say that he did not dispute this nor Mrs Morrison's right to rely on Section 45(1) of the Act. Mr Bailey, before us, satisfied us that Mrs Morrison did not indeed have a right to rely on Section 45(1) and he claimed that he had not made that concession. Whether he made the concession or not does not really matter, because he would have been wrong if he had made it, for reasons that we have already gone into.The rest of the Industrial Tribunal's decision is concerned with findings about what exactly the initial contract of employment between the Club and her was. We need not go into the details of that because that is a pure issue of fact and the conclusion to which they came, notwithstanding that there were some weeks in respect of which she had worked less than sixteen hours, was that she was employed under a contract of employment which normally involved employment for sixteen hours or more weekly, and for that reason they stated their conclusion that she had the necessary two years.It is not entirely clear to us what, if any, reliance was placed on the proposition that Mrs Morrison had a right to return to work under Section 45(1) by the Industrial Tribunal. That is, in the event, an irrelevance on the view we take because that entitlement is not a pre-requisite to a woman's right to count a period allowable under paragraph 9(1)(d) of the 13th Schedule. It is of course, an essential requirement, if what is sought to be added to other periods is a period under paragraph 10 of that same Schedule, which is qualified by the words:

"If an employee returns to work in accordance with [section 45(1) . . ."

and if Mrs Morrison had had to rely on paragraph 10 she would not have been entitled to do so, but for reasons which we have given we think that she succeeds under paragraph 9 alone and there is no proper basis for importing the conditions attached to paragraph 10 into paragraph 9.For those reasons it seems to us that the Industrial Tribunal came, at the end of the day to the right conclusion, and we dismiss this appeal. That will mean that the matter will have to return to the Industrial Tribunal for a substantive hearing on the question of whether there had been an unfair dismissal, which is of course not a subject which has been dealt with either by the Industrial Tribunal or us.