British Telecommunications Plc v Kidd [1993] UKEAT 835_92_0507

EAT
British Telecommunications Plc v Kidd
[1993] UKEAT 835_92_0507 · 1993-07-05
MR JUSTICE TUCKEY : This is an appeal from an Industrial Tribunal who after a hearing in Shrewsbury on 25 August 1992 reached the unanimous decision that a complaint of unfair dismissal by Mrs Kidd had been presented within the statutory three month time limit. The complaint was against the Appellants, British Telecommunications PLC, whom we shall call BT.The circumstances in which the Tribunal reached this decision will become apparent when we recite the facts. Those facts are either to be gleaned from the reasons given by the Tribunal for their decision, or from the agreed Bundle of Documents which were before them.The Respondent had started work with the Appellants in Oswestry on 7 August 1989 in a typing pool engaged on word processing duties. The Appellants alleged that after a time her work deteriorated. As a result she was spoken to on a number of occasions and on 18 March 1991 her manager interviewed her about her deteriorating performance. Immediately following that interview she went on sick leave and received sick notes from her general practitioner saying she was suffering from stress. These notes covered the period up to 1 September 1991.As a result of an enquiry by the Appellants the Respondent's GP produced a report to them which indicated that when he had seen her on 25 March 1991 she was already eight weeks pregnant. That was something which the Appellants were unaware of until they received the GP's report which was dated 31 July. Upon receipt of that information the Respondent saw the Appellants and told them that as from 1 August she was no longer on sick leave but on maternity leave. That was not acceptable to the Appellants and so on 4 August the Respondent signed a standard form in which she informed the Appellants that her baby was expected on 13 October 1991 and that she intended to start maternity leave on 2 September. That was the date following the expiry of the last of the sick notes to which we have already referred. She also stated that she intended to return to work after the baby was born. That information entered the Appellant's system. They had informed the Respondent that as she had not worked for two years she had no absolute right to return to work after the birth of her child but that her entitlement to do so was at the discretion of her line manager. The line manager, Mr England, decided on 13 August that because of the quality of the Respondent's work and her sick absence he would not authorise her return to work and so on 15 August the Appellant's Personnel Administration Department wrote to the Respondent saying:
"You have requested that you be given the right to return to work after the birth of your baby. After careful consideration your Line Manager, Martin England, has decided not to authorise your return to work.

[and the reason for that was given]. The letter went on to say

Therefore your last day of employment with BT will be 3 January 1992, when your eighteen weeks statutory return to work will cease. You will receive six weeks at £178.98 per week followed by 10 weeks at £44.50 per week, this will be paid on your normal pay days commencing 2 September 1991."The Respondent had invoked the right to maternity leave in the form to which we have already referred. The Appellants' internal documents indicate that they also treated her as being on maternity leave. There has been considerable debate before us as to whether in invoking the right to go on maternity leave the Respondent was invoking a contractual right or was doing no more than saying she wanted maternity pay. Of course the payment of maternity pay would not be inconsistent with her contract of employment having been terminated.The debate about that has centred around a document (which was before the Tribunal but to which they do not refer in their Reasons) headed "Employee Terms and Conditions - Maternity Pay and Leave Arrangements" where it is clearly stated in our view that someone with one year's service as this Respondent had, was entitled to maternity leave, (the period of which is unimportant for this purpose) provided she notified her personnel unit at least three weeks before the absence begins that she will be absent from work because she is having a baby and of her intention to resume employment. The form which the Respondent signed on 4 August complied with those conditions.The terms and conditions to which we have referred make it clear in a separate column that the right of return to work for a woman with less than two year's service was allowed at the discretion of her local manager. It is argued on behalf of the Appellants that the inclusion of this provision makes it clear there is only a contractual entitlement to leave where the local manager has, in his discretion, decided to allow the employee back. As that is not the case here, it is said that the Respondent had no right to maternity leave under this scheme. As a matter of construction of the document itself and as a matter of commonsense and experience we do not agree. It is not inconsistent to say that you have a right to leave but we also refuse the right to return. The contract will continue until the contractual leave comes to an end. The fact that it is not followed by a return to work is neither here nor there.Upon receipt of the letter dated 15 August there was further correspondence. The union took the matter up on behalf of the Respondent and asked for reasons for the decision not to allow the Respondent to return to work to which, on 5 September, the Appellants replied referring to her being on maternity leave. There was further correspondence. The Respondent herself on 28 November stated her intention to return to work on 2 January 1992 to which the Appellants replied that she was not entitled to do so as they had decided not to allow her to return to work. But at no stage in any of the correspondence is there any attempt by the Appellants to withdraw or undo the effect of the letter of 15 August and as we have already said, it seems to us from the internal documents that the Appellants themselves were treating this as a case where the Respondent was on maternity leave (as indeed we think she was entitled to be under her contract) and that her contract would come to an end at the time when that leave came to an end which, in accordance with their letter of 15 August, was 2 January 1992.The Respondent complained to the Industrial Tribunal on 23 March 1992 alleging that the principal reason for her dismissal was her pregnancy or a reason connected with her pregnancy which according to section 60 of the Employment Protection (Consolidation) Act made it unfair, alternatively if that was not the principal reason that they acted unfairly in dismissing her for her performance and sick record. It was not until the Appellants reply to that complaint that the point was made that she was not dismissed and that her employment had ended on 30 August 1991. It was these two points which were heard as preliminary points before the Tribunal which resulted in the decision to which we have already referred. The decision of the Tribunal was that she had been dismissed on 3 January 1992 in accordance with the terms of the letter of 15 August and so her complaint to the Tribunal was within time.In their Reasons the Tribunal say that having read the letter the Respondent, like any reasonable employee, would understand that her employment had ended on 3 January 1992 and say:

"That is what we find was the effective date of termination of her employment"

Having referred and considered the case of Lucas v Norton [1984] IRLR 86 they concluded that the Applicant had the right to make a claim for unfair dismissal but added the words:

"Whether it will succeed is a different matter."

Those findings are attacked by the Appellants. It is common ground that Mrs Kidd had no contractual or statutory right to return to work because she had not been employed for the qualifying period laid down by section 33 of the Act. It is their contention that she must therefore be deemed to have resigned on 30 August on the basis that as she was not exercising any contractual or statutory right to return to work this must be taken to be a case where in effect she was saying - "I resign because I am going to have a baby". That is a decision, it is contended, the Tribunal were compelled to reach in the face of the documents to which we have referred which show the contrary.Miss Heal, Counsel for the Appellants, firstly relies on the decision of the Court of Appeal in Northern Ireland in McKnight v Adlestones (Jewellers) Ltd [1984] IRLR 453. In that case the employee did not have the right to return because she had failed to give her employers the required notice of absence.

Lord Justice Gibson said at page 455:

"Where a former employee has no contractual right to return to work after her confinement, then she cannot complain of an ordinary dismissal if she is not in fact allowed to return. As far as the law of contract is concerned she has simply left her job to have her baby and a claim for an ordinary dismissal is out of the question."
The other case relied on by Miss Heal is Kolfar Plant Ltd v Wright [1982] IRLR 311 where the decision of the Employment Appeal Tribunal in Scotland contains an even more delphic reference than the one in McKnight to the position where an employee has nocontractual or statutory right to return to work and we derive no assistance from it.

The reason why Lord Justice Gibson says

"As far as the law of contract is concerned she has simply left her job to have her baby and a claim for an ordinary dismissal is out of the question"
is not spelt out in his Judgment. If the facts were that the woman had simply said to her employers "I am leaving to have a baby" one could understand, that this would be the legal consequence but to say that this applies to every case where someone leaves to have a baby where there is no right to return to work cannot, in our view, be correct. Each case must depend upon its own facts. For example the circumstances surrounding the announcement, and the terms of the employee's contract will be relevant to determining the question as to whether the employee has resigned or whether some other state of affairs exists which requires further analysis. That this is so is supported by the decision of the EAT in the case of Institute of the Motor Industry v Harvey [1992] ICR 470 where, at page 479 D-E Mr

Justice Wood the President said:

"It is clear that the Act of 1978 envisages that contractual rights and statutory rights may co-exist. What then is the effect upon the employment relationship if a woman gives a section 33 notice? There may be cases where her contract of employment comes to an end when she goes on maternity leave, for instance by agreement or resignation. There may be a termination in some other way - for instance by dismissal, in which case other possible remedies may arise. However unless terminated in some such way that contract is likely to continue."
That case makes it clear that the question is one of fact and legal analysis of those facts in any particular case. We do not think any hard and fast rules can or should be made as to how this question should be answered.So what are the facts here? Here we have an employee who did have a contractual right to maternity leave. She exercised that right. Moreover the Appellants accepted that position and made it clear beyond doubt by their letter of 15 August 1991 that that is what they were doing by indicating that her employment would come to an end on 3 January 1992. That letter is only capable of one construction: your contract will come to an end on that date and until then you will be paid statutory maternity pay on your normal pay days.To suggest that what actually happened was that the Respondent should be deemed to have resigned is to suggest a conclusion which flies in the face of the facts and in the face of reality. In situations like this the parties are entitled to know where they stand. Here the Respondent was told clearly where she stood after exercising a contractual right. The Appellants also knew perfectly well where they stood. The argument, based on decisions in other cases, that this mutual understanding was entirely wrong and that the Respondent should be deemed to have resigned does not withstand analysis in our judgment.For these reasons we think the Industrial Tribunal reached the right decision and the appeal is dismissed.