Paradise v Warrington Homes Ltd [1994] UKEAT 802_92_2102

EAT

Paradise v Warrington Homes Ltd

[1994] UKEAT 802_92_2102 · 1994-02-21

MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mrs Hazel Ruth Paradise against a decision of the Industrial Tribunal sitting at Bristol on the 29th September 1992.

For reasons notified to the parties on 23rd October 1992 the Tribunal unanimously decided that Warrington Homes Limited, who employed Mrs Paradise as a Care Officer, did not dismiss her from her employment by reason of their refusal to allow her to exercise her statutory right to return to work following an absence due to her confinement.

Mrs Paradise was dissatisfied with the decision and by a Notice of Appeal dated the 3rd November 1992 sought to question that decision as being in error of law.

The background to the dispute is that Mrs Paradise began maternity leave on the 2nd January 1992, having given the appropriate notice. She gave notice subsequently that she wished to return to work on the 25th April. That notice was given by a letter on the 16th March 1992. Mrs Paradise did not return to work on that date. A medical certificate was provided concerning her ill health. Warrington Homes contend that the certificate was provided only after the notified date of return and that a second medical note was provided indicating a return date of the 30th May 1992. In those circumstances, it was contended on behalf of Warrington Homes, as set out in their Notice of Appearance dated 2nd July 1992, that under Section 47(3)(a) of the Employment Protection (Consolidation) Act 1978 an employee may postpone the notified date of return for no more than 4 weeks and further, on the grounds of ill health, a medical certificate is provided to the employer before the notified date of return. Their case is that once the four week period expires then the employee loses the right to return to work and the contract of employment terminates.

Mrs Paradise's case was concentrated on a different aspect of the dispute. Her case was that she was advised while she was on maternity leave that her employers had changed their system of operating which would affect her hours of work. Before she had gone on maternity leave the arrangement by agreement in accordance with her contract of employment was that, she should have Tuesdays and Fridays off. The effect of the change notified by the employers is that the rota would now operate so that she had Saturdays and Sundays off. She never agreed to those changes in her hours of work. Her case was that this created a problem for her because her husband and herself had planned their domestic arrangements and working hours to fit in with the hours of work as agreed before she went on maternity leave.

In those circumstances, she claimed that she had been unfairly dismissed. She also submitted that she had not been able to return to work because she was on certified sick leave. At no time had her employers questioned the validity of the sick notes or enquired about her future availability for work. There was no request for information from her GP or for her to see a doctor chosen by her employers.

Those were the general points of dispute before the Industrial Tribunal. Her claim was that she had been unfairly dismissed on the 23rd May 1992.

The matter came before the Industrial Tribunal on the 29th September 1992. The Industrial Tribunal decided the case on a relatively narrow point. Having referred to the statutory provisions and summarised the facts in relation to the maternity leave the Industrial Tribunal said in paragraph 5 of its decision:

"We have considered the effect of the subsection (s.42(2)) on the contents of s.45(1) and our view is that the wording of this subsection is such that it limits the effect of the words `terms and conditions' in s.45(1) to those matters referred to in s.45(2). That being so it is our view that the change in the applicant's shift rota is not a change in her terms and conditions of employment of a kind which can be taken into account in construing s.45(1) of the Act. We also considered whether the respondents were in breach of s.45(1) in making this change in that they were not in effect offering the applicant `the job in which she was employed under the original contract of employment'."

They refer to the definition of "job" in s.153(1) and to the decision of Williams v. National Theatre Board Ltd

[1982] IRLR 377

CA. They then said this:

"We considered this was not the case having regard the terms under which she had been employed which specifically made provisions for the hours of work being agreed with the Head of Home and in which there had in fact been two previous changes. We therefore came to the conclusion that these changes did not alter the nature of employment to such an extent as to alter the applicant's job. We therefore found that the respondents were not in breach of s.45(1) of the Act in stipulating the new working hours. The applicant's representative in the course of the hearing accepted that it would be impossible for him to argue that the applicant had effectively returned to work on 25 April 1992 when she was absent due to sickness and having regard to this matter and our above findings with regard to the provisions of s.45(1) of the Act we find that the applicant was not dismissed by the respondents and therefore dismiss her unfair dismissal complaint."

This case illustrates the usefulness of skeleton arguments, particularly when they are lodged in sufficient time for Members of the Tribunal to read in conjunction with the papers. They also show their usefulness for to each side to know how the other side will argue on the appeal.

Ms Gill, on behalf of Mrs Paradise, put in a concise, clear skeleton argument. It was stated that the only issue on appeal was whether the Industrial Tribunal erred in law in finding that Mrs Paradise was not dismissed by the Respondent on the 25th April 1992, being the notified day of return from maternity leave, by reason of the Respondents' refusal to permit her to return. The skeleton argument refers to the statutory provisions in S.45, and the notices given. The argument summarised the terms and conditions applicable to Mrs Paradise and then stated Mrs Paradise's case that she was dismissed by reason of the employer's failure to allow her to return to work on the same shift pattern as she was working when she took maternity leave. The Industrial Tribunal held that the words "terms and conditions" in S.45 were limited to the matters referred to in S.45(2). It was submitted that that was an error of law. It was an inference from the findings of fact made by the Tribunal, from the statement of Mrs Paradise and the correspondence that the change in the hours was not agreed. The absence of agreement and/or the seeking of her agreement was due to her absence on maternity leave. The terms and conditions specified for her return were therefore less favourable than those which would have been applicable if she had not been so absent, In those circumstances this Tribunal was invited to substitute a finding that she had been dismissed pursuant to S.56 and that the matter of fairness of the dismissal should be remitted to the Industrial Tribunal.

Mr Richardson, for the employers, submitted an equally succinct skeleton argument. He said that the respondent employer did not intend to argue in support of the Industrial Tribunal's ground of decision to the effect that a change in the Applicant's shift rota was not a change in terms and conditions of employment of a kind which could be taken into account for the purpose of S.45(1). He sought to persuade this Tribunal that the Industrial Tribunal correctly decided that Mrs Paradise had not effectively returned to work for the purposes of the Act. He submitted, in relation to the statutory provision the timing of the provision, of the medical certificates and the fact that Mrs Paradise did not return to work within the relevant period that the Tribunal's decision was plainly and unarguably right and the appeal should be dismissed.

Having seen that skeleton argument, Ms Gill submitted a supplementary skeleton challenging the submissions and conclusions of Mr Richardson.

The position in this Tribunal is that, it appears to be common ground that the decision of the Tribunal on the "terms and conditions" point cannot be supported. There are, however, new matters which have to be investigated and argued both on the facts and on the construction of the relevant statutory provisions. In those circumstances the parties accept that the most satisfactory course is for the matter to be remitted to the Industrial Tribunal. It will be for the Industrial Tribunal to deal with a number of questions on which there have been no clear findings of fact or law in the decision under appeal. In particular, the Industrial Tribunal will have to consider four points. First, whether this is a case in which the terms and conditions are, or are not, less favourable than those which would have been applicable to Mrs Paradise, if she had not been so absent within the meaning of S.45 of the Employment Protection (Consolidation) Act 1978 . Secondly, whether in all the circumstances and on its proper construction, this is a case of deemed dismissal within the meaning of S.56 of the 1978 Act . On that point the Industrial Tribunal will have to consider arguments on the interaction of S.56 and the exercise of the right to return to work conferred by S.47. Thirdly, the Industrial Tribunal have to consider the application of S.56(a)(1)(d). Fourthly, and finally, the general provisions relating to fairness of dismissal contained in S.57, as amended by Schedule 2, will have to be considered.

Having read the skeleton arguments and heard submissions from both Counsel we are satisfied that this appeal should be allowed. There was an attempt at an early stage in the appeal to persuade the Tribunal that it should to decide, on the findings of fact made by the Industrial Tribunal, the issue under S.45. After discussion between ourselves and Counsel we have come to the conclusion that that would not be a satisfactory course to follow, as it was conceded by both sides that an inevitable consequence of allowing the appeal was that all the other matters would have to be remitted to the Tribunal.

There was also an attempt, to persuade the Tribunal to express a view on the construction of S.56 and its interaction with S.47. That is a matter better decided in the context of all the points which arise for decision, and should not to be dealt with piecemeal.

For these reasons the appeal is allowed. The matter is remitted to the same Industrial Tribunal to make findings of fact and conclusions of law on the four points which I have identified.