Hilton International Hotels (UK) Ltd v Kaissi [1994] UKEAT 28_92_2701

EAT
Hilton International Hotels (UK) Ltd v Kaissi
[1994] UKEAT 28_92_2701 · 1994-01-27
(2) the dismissal of Mrs Kaisi did not constitute discrimination against her on the ground of her sex.The resolution of both issues involves an examination of some of the most complex statutory provisions governing the relationship between employers and employees, namely those concerned with the rights of an employee in connection with pregnancy and confinement. This case illustrates the importance of the availability of clear and correct advice for the benefit of those engaged in operating the provisions.After one and a half days of argument, unassisted initially by any written outline argument from either side, we share the sentiments of exasperation and desperation expressed by Mr Justice Browne-Wilkinson in Lavery v. Plessey Telecommunications Ltd [1982] ICR 373 at 379E and by Lord McDonald in Kolfor Plant Ltd v. Wright [1982] IRLR 311 at 312.
"These statutory provisions are of inordinate complexity exceeding the worst excesses of a taxing statute; we find that especially regrettable bearing in mind that they are regulating the every-day rights of ordinary employers and employees. We feel no confidence that, even with the assistance of detailed arguments from skilled advocates, we have now correctly understood them: it is difficult to see how an ordinary employer or employee is expected to do so. Doing the best we can with this unpromising material, the position seems to be as follows."
In this judgment we shall attempt to explain the legal position clearly and simply, without inflicting on the reader unnecessary recitation of the statutory provisions or a detailed analysis of the different facts and legal arguments in other cases.

The Facts

Mrs Kaissi began to work for Hilton on 7th March 1977. Between then and 1990 she gave birth to three children. Each time she took maternity leave and subsequently returned to work. It appears that on only one of those occasions did she comply with the statutory and contractual procedures which both required her to give written notification to the employer of her intention to return to work after confinement.In 1990 she became pregnant again. Her maternity leave began on 14th September 1990, but she had been absent from work with back problems before that date and was in receipt of sick pay. In fact, Hilton continued to pay her sick pay throughout September and October 1990. She did not receive any statutory maternity pay during that period.On 30th October 1990 the baby was born. On 2nd November Mr Kaissi went to see Mr David Sharpe, Hilton's Executive Assistant Manager, about the payment of maternity benefit. Mr Sharpe made arrangements for the correct maternity payments to be made. He also wrote a letter on 2nd November to Mr Kaissi in the following terms:
"I hope that the correct maternity payments have now been made following our recent meetings. The main reason for my writing is to remind you of one of our discussions with reference to Fatima's return to work. I should have already received a letter from you confirming her intention to return to work following her maternity leave. Please let me have written confirmation as soon as possible, if this is what Fatima intends to do.
I do hope Fatima and the new baby are well, and I look forward to hearing from you in the future."Neither Mrs Kaissi nor her husband replied to the letter which they said they never received. Mrs Kaissi neither speaks nor understands English.On 16th January 1991 payments of statutory maternity pay to Mrs Kaissi ceased. On 20th February Mrs Kaissi, with the assistance of her daughter, wrote a letter to Hilton stating:
"I'm writing to inform you that I will not be able to restart work due to the illness related to my pregnancy. When I am fit enough to start work I will inform you, but in the meantime if you require any information or confirmation please do not hesitate to contact Dr Elliot my Family Doctor."
A medical certificate headed "For Social Security and Statutory Sick Pay purposes only" of the same date stated that Mrs Kaissi should refrain from work for one month. The diagnosis of her disorder causing absence from work was stated to be "pelvic infection".On 25th February 1991 the Executive Assistant Manager, then Mr Richard Harrison, wrote to Mrs Kaissi as follows:
"Further to Mr Sharpe's letter of 2nd November 1990, I must advise you that your employment at the London Olympia Hilton has been terminated. Mr Sharpe asked you to provide written confirmation of whether or not you intended to return to work. As we had not received a letter from you at the beginning of February, we terminated your employment.
At the present time we do not have any vacancies in the housekeeping department. However, should you wish to return to work at London Olympia Hilton, we will give favourable consideration to your application."Mrs Kaissi did not return to work and did not receive any further payment of any kind from Hilton.It may be noted that, subject to compliance with the relevant procedures, Mrs Kaissi had the right to return to work for up to 29 weeks after confinement. The 29-week period in this case would, if applicable, have expired in mid-May 1991.

The Proceedings

On 10th May 1991 the Hammersmith Law Centre presented a complaint to the Industrial Tribunal on behalf of Mrs Kaissi. She made three complaints: first, of unfair dismissal under S.57 of the 1978 Act; secondly, of dismissal due to pregnancy under S.60 of the 1978 Act; and, thirdly, of sex discrimination within the meaning of sections 1(1)(a) and 6(2) of the 1975 Act.The dates of her employment were given as beginning in 1976 and ending on 25th February 1991.In its Notice of Appearance dated 24th January 1991, Hilton stated that the dates of employment given by Mrs Kaissi were not correct and stated that the correct dates were that her employment began on 7th March 1977 and ended on 25th February 1991. That statement of agreement on the end date of Mrs Kaissi's employment is important in view of arguments later advanced on behalf of Hilton. In its Notice of Appearance Hilton contended that(1) Mrs Kaissi had gone on maternity leave without giving any indication that she intended to return to work following maternity leave;(2) Mrs Kaissi had not responded to the request contained in the letter of 2nd November 1990 of written confirmation of her intention to return to work;(3) Mrs Kaissi was not dismissed;(4) If there was a dismissal, it occurred in the course of Mrs Kaissi attempting to return to work following maternity leave and she could not, therefore, bring herself within the provisions of S.56 or S.55) of the 1978 Act;(5) There had been no unlawful discrimination against Mrs Kaissi on the ground of sex.

The Industrial Tribunal Decision

In its Full Reasons notified to the parties on 13th November 1991, the Industrial Tribunal, after setting out the facts, reached the following conclusions:(1) Mrs Kaissi was not entitled to the benefit of the provisions in S.56 of the 1978 Act because she had failed to give to Hilton proper notice in writing under the provisions in S.33.(2) Hilton had not, by the conduct of Mr Sharpe in relation to this pregnancy or by its general conduct in relation to earlier pregnancies of Mrs Kaissi, waived the requirement as to written notice and Mrs Kaissi could not, therefore, be treated as a person who had given proper notice.(3) Mrs Kaissi remained an employee of Hilton down to 25th February 1991. During the period when she was away from work she was in the position of a person who was off work sick with the tacit permission of Hilton. Hilton knew that she was sick, paid her sick pay down to the birth of her child and took no action to terminate the contract of employment before 25th February 1991.(4) The letter of 25th February was a dismissal of Mrs Kaissi within the meaning of S.55(2)(a) of the 1978 Act. Hilton's action had nothing to do with her statutory maternity rights as she had none, having failed to comply with the relevant procedures.(5) The dismissal on 25th February was unfair because, although Mrs Kaissi had notified Hilton that she was sick, Hilton took no steps to investigate the position or find out what was happening to her; for example, to find out whether she would be able to resume work within a reasonable time. In the words of the Tribunal Hilton "simply decided to dismiss her". The dismissal was an "ordinary unfair dismissal", not one due to pregnancy.(6) There was no sex discrimination against Mrs Kaissi: she was dismissed "because she was sick" and was not to be regarded "as being in the position of a pregnant woman" who might be able to claim sex discrimination.

The Appeal

Hilton, by its Notice of Appeal dated 23rd December 1991, appealed against the finding of unfair dismissal. Its case on the appeal, as foreshadowed by the grounds, was summarised in a short document produced on the first day of the hearing on the request of the Tribunal. As developed by Mr Bonney on behalf of Hilton the argument was that Mrs Kaissi was not unfairly dismissed, because she was not dismissed by Hilton by its letter of 25th February 1991. Her contract of employment had already terminated before that date. Its termination did not involve any dismissal of Mrs Kaissi by Hilton. The contract had terminated by reason of Mrs Kaissi failing to comply with the relevant statutory and contractual procedure or by her failure to give the written notice of her intention to return to work, as requested in Mr Sharpe's letter of 2nd November 1990. Mrs Kaissi could have no claim for "ordinary" unfair dismissal under S.55 because Hilton had never dismissed her. Alternatively, if Hilton dismissed Mrs Kaissi by the letter of 25th February 1991, that dismissal was not unfair, as she had no statutory or contractual right to return to work as a result of her own failure to comply with the procedures. The most that was left at 25th February 1991 was a husk of a contract. Hilton was not depriving Mrs Kaissi of anything or inflicting a detriment upon her unfairly by formal termination of it.Against that, Mr Pullen, on behalf of Mrs Kaissi, sought to uphold the decision of unfair dismissal. At the request of the Tribunal he also produced during the first day of the hearing a written summary of his legal propositions. He made it clear that Mrs Kaissi's only claim in relation to unfair dismissal was based on an "ordinary" dismissal under S.55(2)(a). Mrs Kaissi's dismissal occurred as a result of Hilton's letter of 25th February. Until that date Mrs Kaissi's contract of employment subsisted. In particular, he disputed the argument advanced by Hilton that Mrs Kaissi's contract had determined by virtue of her going on maternity leave, or as a result of failing to respond to the letter of 2nd November 1990, or by reason of her ceasing to receive statutory maternity pay in January 1991. He accepted that Mrs Kaissi did not have a claim of unfair dismissal under S.56 of the 1978 Act. He submitted that the dismissal on 25th February did not occur in the course of Mrs Kaissi attempting to return to work, because she had never sought to exercise any right to return to work under S.47(1) of the 1978 Act.Mrs Kaissi cross-appealed against the rejection of her claim that her dismissal was unfair under S.60 of the 1978 Act and was discriminatory under S.1(1)(a) of the 1975 Act. In respect of both claims Mr Pullen submitted that Mrs Kaissi was dismissed for a "reason connected with her pregnancy". The diagnosis contained in the doctor's certificate of 20th February 1991 was of a condition "connected with her pregnancy". It was a condition which originated in her confinement. The Tribunal erred in law in simply stating that she was dismissed "because she was sick" and in failing to make a finding of relevant fact as to the nature of her illness, ie whether it was pregnancy related. If it had made such a finding (and Mr Pullen argued that it should have made such a finding), then she would have been unfairly dismissed by reason of S.60 of the 1978 Act and would also have a claim for sex discrimination under the 1975 Act, having regard to recent decisions of the House of Lords and of the European Court of Justice.In response to the cross-appeal Hilton argued that the Industrial Tribunal was right and that there was no sex discrimination. On the evidence before it no reasonable Tribunal could have concluded that Mrs Kaissi's sickness was pregnancy related or that, if she was dismissed, the reason or principal reason for her dismissal was that she was pregnant or was for any other reason connected with her pregnancy.

Common Ground

During the course of the hearing the extent of the common ground between the parties became clear.

On behalf of Mrs Kaissi it was accepted that -

(1) By reason of her failure to comply with the statutory procedure in S.33 of the 1978 Act she had no "right to return to work" and was not entitled to exercise such a right under the Act. She could not, therefore, advance a claim under S.56 that she should be treated as if she had been dismissed in consequence of not being permitted by Hilton to return to work.(2) By reason also of her failure to comply with the provisions in Rule 5.1 of Hilton's Staff Handbook, relating to maternity leave, Mrs Kaissi was not entitled to rely on her contract of employment to confer on her the right to return to work for up to 29 weeks after confinement. Although the Staff Handbook is not referred to in the Industrial Tribunal's Decision, there is no dispute that Rule 5.1 formed part of the terms and conditions of Mrs Kaissi's contract of employment with Hilton. The Rule provides under the heading "Maternity Leave",
"Female employees who work at least 16 hours per week (or 8 hours per week over 5 years' service) and have been employed by the company for two years or more by the 11th week before expected confinement have the right to return to work for up to 29 weeks after confinement. A certificate of confinement must be presented to your manager. The maternity leave is subject to the employee remaining at work up to the 11th week before confinement. The employee must also submit in writing a declaration of her intention to return to work at least three weeks before leaving. Absence of such written declaration will be counted as confirmation that the employee will not be returning to her job, and as such necessary steps will be taken to fill the appointment. The employee must give 21 days' notice before returning to work. The company have the right to postpone her return by up to 4 weeks for any reason. The employee may postpone her return by up to 4 weeks on medical grounds."
Mrs Kaissi did not submit to Hilton a written declaration of her intention to return to work at least three weeks before leaving (or at all).(3) There was no waiver by Hilton, either specifically or generally, of the statutory and contractual requirements in relation to the existence and exercise of a right to return to work by Mrs Kaissi.On Hilton's part Mr Bonney accepted, towards the end of the hearing of the appeal, that Mrs Kaissi was not, at the time of writing her letter of 20th February 1991 or as at 25th February 1991, "in the course of attempting to return to work" within the meaning of the statutory provisions. (See para.6 (2), Schedule 2 to the 1978 Act).

The Legal Position - Unfair Dismissal

This Tribunal was referred to the relevant statutory provisions in the 1978 Act and to the following authoritiesLavery v. Plessey Telecommunications Ltd [1982] ICR 373 (EAT) and [1983] IRLR 202 (CA)

Kolfor Plant Ltd v. Wright [1982] IRLR 311

McKnight v. Adlestones (Jewellers) Ltd [1984] IRLR 453

Kelly v. Liverpool Maritime Terminals Ltd [1988] IRLR 310

Institute of the Motor Industry v. Harvey [1992] IRLR 343

For the purposes of deciding this appeal it is unnecessary to set out the relevant statutory provisions or to analyse the authorities in detail. The judgment may be more intelligible to the parties and their advisers and of more use to other Tribunals if we state our conclusions simply and clearly. We have not found it easy to do this. The presentation of the oral arguments in this case highlighted, both from the point of view of the advocate and of this Tribunal, the need to support submissions on points of law by a structured, written, outline argument. The Notice of Appeal and the cross-appeal identified the grounds of appeal, but they did not, and were not designed to, set out the steps in the argument. Without the discipline of a written outline argument there is an unfortunate tendency to indulge in the citation of precedents as a substitute for argument. It is not unfair to say that our conclusions in the present case were reached by means of each member of the Tribunal engaging in the socratic method.Our conclusion is that there was no error of law in the decision of the Industrial Tribunal that Mrs Kaissi was unfairly dismissed. In our judgment, the legal position is as follows:(1) Mrs Kaissi had a contract of employment with Hilton. In that employment she had the right not to be unfairly dismissed by Hilton: S.54 of the 1978 Act. By virtue of S.60 she would be treated as unfairly dismissed if the reason or principal reason for her dismissal was that she was pregnant or was any other reason connected with her pregnancy. Further, the rules contained in the Staff Handbook, which formed part of her terms and conditions of employment with Hilton, provided for maternity leave: see Rule 5.1.(2) Mrs Kaissi was on sick leave and in receipt of sick pay before the start of her maternity leave on 14th September 1990. She continued to receive sick pay from Hilton down to the end of October 1990. That fact is consistent with the continuance of her contract, not with its termination. This is not a case of the kind described by Gibson LJ in the judgment of the Northern Ireland Court of Appeal in McKnight v. Adlestone (Jewellers) Ltd (supra) at p.455 where the employee has "simply left her job to have her baby", in which case "a claim for ordinary dismissal is out of the question." Mrs Kaissi did not resign or, to use Mr Bonney's expression, "dismiss herself" from her employment. No steps were taken by Hilton at that time to terminate the contract of employment. There is no evidence of an express or implied agreement between Hilton and Mrs Kaissi to terminate the contract. The continued payment of sick pay is inconsistent with Mr Bonney's submission that the contract automatically terminated or "petered out" in consequence of Mrs Kaissi's failure to submit to Hilton a declaration in writing of her intention to return to work at least three weeks before leaving, as required by the contract, or by her failure to give written notice under S.33 of the 1978 Act. Although the contract provided in Rule 5.1 that absence of a written declaration would be counted as confirmation that the employee would not be returning to her job, the contract provides nothing about the termination of the contract of employment. There is no evidence that any steps had been taken by Hilton to fill Mrs Kaissi's position. On the contrary, the letter written by Mr Sharpe on 2nd November 1990 is consistent with her position remaining open for her return.(3) As for Mrs Kaissi's failure to comply with the procedure in S.33, although that had the effect that she had no statutory right to return to work, it did not in itself terminate the contract. None of the maternity rights provisions of the 1978 Act expressly provide that a contract of employment shall be terminated, or treated as terminated, if the statutory right to return to work has not arisen by the employee giving notice under S.33 or is not exercisable as a result of the failure of the employee to comply with S.47. In cases where the right has arisen by the giving of notice before leaving work, but the statutory procedure for the exercise of that right by giving notice before returning to work has not been followed, it has been held that the contract of employment may continue to exist while she is on maternity leave, unless it is terminated by agreement, resignation or dismissal. The contract of employment may continue to subsist, even though the obligation to perform the main terms of the contract may be suspended while the employee is on maternity leave eg, the obligation of the employer to pay remuneration and the obligation of the employee to work. See, for example, Institute of the Motor Industry v. Harvey (supra) at p.347. Depending on the express or implied terms of the contract and the circumstances of the case, the suspension of the obligations may be brought to an end by the employee's exercise of her right to return. If, however, the employee does not attempt to exercise the statutory right to return or fails to exercise it effectively, it may be held that the whole basis for the continuation of the contract, as contemplated by the parties, would go and the contract would automatically determine in accordance with the implied agreement of the parties: see McKnight v. Adlestone's (Jewellers) Ltd (supra) at pp.454 and 455. The essential point is that the question whether or not the contract of employment comes to an end or continues depends on the agreement and actions of the parties, which may differ from case to case. In brief, the contract may continue if that is what the parties expressly or impliedly agree and neither takes any action to bring it to an end. If the parties agree expressly or impliedly to bring a contract to an end or either of them takes appropriate action to bring it to an end, then the contract will determine. The continuance or discontinuance of the contract is a matter of contract, not a matter of statute.(4) There was no express or implied agreement between Mrs Kaissi and Hilton on 2nd November 1990 to bring the contract of employment to an end. There was no action on the part of Mrs Kaissi to resign or terminate the contract. She simply continued on leave from work with the permission of Hilton. She stopped receiving statutory maternity pay on 16th January 1991 and notified Hilton on 20th February 1991 that, on account of sickness, she would not be returning to work yet. None of those actions could be construed as evidence of an agreement to terminate the contract or as a unilateral determination of the contract by Mrs Kaissi.(5) From 2nd November 1990 down to 25th February 1991 no actions were taken by Hilton which could be construed as evidence of an agreement to terminate the contract or as a unilateral action by Hilton to terminate the contract. When Hilton failed to receive a response to the letter of 2nd November 1990 no further action was taken by Hilton until the letter of dismissal on 25th February 1991.(6) The letter of 25th February 1991 was a dismissal of Mrs Kaissi within the meaning of S.55(2)(a) of the 1978 Act which provides that:
"An employee shall be treated as dismissed by his employer if, but only if, - (a) the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice."
If the contract of employment had not, as we believe, terminated before 25th February 1991, it was terminated by Hilton on that date. That termination was a dismissal. As it was a dismissal, Mrs Kaissi was entitled to claim that it was unfair. The Tribunal held that it was unfair because, although Hilton had been informed by Mrs Kaissi that she was sick, Hilton made no further investigation of her situation before terminating the contract. That is a finding of fact which cannot be reversed by this Tribunal unless it forms the view that no reasonable Tribunal, on the material before it, could have come to that conclusion. In our judgment, there was sufficient material before the Tribunal to justify that conclusion.(7) The admitted fact that, as at 25th February 1991, Mrs Kaissi had no statutory or contractual right to return to work, does not conflict with the finding of unfair dismissal. As the contract of employment continued down to 25th February 1991, there continued with it a statutory right on the part of Mrs Kaissi not to be unfairly dismissed by Hilton. It is accepted on behalf of Mrs Kaissi that Hilton may well have been justified in not permitting her to return to work if she was dismissed in the course of attempting to return to work. It does not, however, follow that Mrs Kaissi lost or forfeited the right not to be unfairly dismissed. Mr Bonney pressed us with the decision of the Northern Ireland Court of Appeal in McKnight . In particular, the passage on pages 454 and 455, taken out of context, might suggest that no claim for ordinary dismissal could ever be brought by an employee who had gone on maternity leave without taking the appropriate steps to notify her employer of her intention to return to work or of the exercise of her right to return to work. The facts of the present case are different from that case. In any event, we do not believe that, on a proper reading of Lord Justice Gibson's judgment, he was laying down such a sweeping proposition.For all those reasons we dismiss the appeal by Hilton against the decision of the Industrial Tribunal that Mrs Kaissi had been unfairly dismissed.

The Legal Position, S.60 of the 1978 Act and the Sex Discrimination Act

Our conclusion on this part of the case is that the cross-appeal by Mrs Kaissi should be allowed and that the matter should be remitted to the Industrial Tribunal to decide whether Mrs Kaissi was dismissed for a "reason connected with her pregnancy" within the meaning of S.60 of the 1978 Act and whether there was discriminaion on the ground of sex contrary to the 1975 Act. In its decision the Industrial Tribunal simply held that Mrs Kaissi had "not been dismissed because she was pregnant. She has been dismissed because she was sick." The Tribunal did not consider whether or not the sickness was "connected with her pregnancy". Prima facie, there was some evidence that it was, as indicated by Mrs Kaissi's assertion in her letter of 20th February that her condition was "pregnancy related". It was submitted by Mr Pullen that the "pelvic infection" referred to in the doctor's certificate was connected with her pregnancy. We are unable to accede to Mr Bonney's suggestion that, on that material, no reasonable Tribunal could conclude that Mrs Kaissi's sickness was connected with her pregnancy. The plain position is that the Industrial Tribunal never made any finding of fact in relation to the nature of Mrs Kaissi's sickness. It does not seem that they heard any medical evidence relevant to that issue. The Tribunal was in error of law in not making a factual finding potentially relevant to the issue arising under S.60 and to the question of sex discrimination. We are unable to make such a finding of fact. That can only be done by the Industrial Tribunal to whom we must remit the matter. Depending on the finding of fact the Tribunal will then have to consider whether(1) the dismissal was unfair on the grounds contained in S.60 of the 1978 Act; and(2) whether there was sex discrimination contrary to the 1975 Act. On the question of sex discrimination the Industrial Tribunal will be guided by the decision of the House of Lords in Webb v. Emo Air Cargo Ltd [1993] ICR 175 . In deciding the issue of direct discrimination contrary to S.1(1)(a) of the 1975 Act (ie Has Hilton, on the ground of Mrs Kaissi's sex, treated her less favourably than it treated or would treat a man?) the Industrial Tribunal should make a comparison with a hypothetical man who would also be unavailable at the critical time (see p.182A). Mr Pullen pressed us with the case of Handels-Og Kontorfunktionaerernes Forbund i Danmark v. Dansk ... the Hertz case) [1992] ICR 332 , a decision of the European Court of Justice on the interpretation of the Equal Treatment Directive (76/107/EEC) concerning dismissal of a woman suffering from sickness due to complications arising from her confinement. The Court drew a distinction between (1) the period of maternity leave allowed by national law, during which a woman is protected against dismissal due to absence, and (2) a case of an illness manifesting itself after maternity leave, in which case there is no reason to distinguish an illness attributable to pregnancy or confinement from any other illness.Although the Directive (as interpreted in the Hertz case) does not have direct effect upon the relationship between Hilton and Mrs Kaissi, the Industrial Tribunal should, if it is possible to do so without distortion of meaning, construe and apply the 1975 Act so as to accord with Hertz decision on the Directive. It is inappropriate for this Tribunal to express a view on that question before the relevant facts have been established.For those reasons the cross-appeal will be allowed and the matter remitted to the Industrial Tribunal to make a further finding of fact on the issue of the nature of Mrs Kaissi's sickness and, in the light of that, to re-consider the complaints under S.60 of the 1978 Act and under the 1975 Act.