Bourne & Ors v Transport & General Workers Union [1998] UKEAT 641_98_0109

EAT
Bourne & Ors v Transport & General Workers Union
[1998] UKEAT 641_98_0109 · 1998-09-01

JUDGE J HICKS QC:

The Appellants Miss Bourne, Mrs Merola and Mrs Holder were employed by the Respondents Transport and General Workers' Union and each of them during and after pregnancy was entitled to and received maternity leave. During those periods of maternity leave there fell certain Bank Holidays or other days on which had they been working they would in any event have been entitled to leave under Clause 3.6 of the terms of the contract of employment which reads:
"Staff will be granted leave with pay on Bank and other Holidays. In addition, one day's holiday with pay will be granted immediately following the Christmas, Easter, Spring and Summer Bank Holidays. There will also be two other days at Christmas, making a total of fourteen in the year."
The words "and other holidays" in the first sentence might, if there were nothing else, have been very ambiguous but it is quite clear by the way in which the dates are given and then added up to 14 days what is covered by that, and we gather that that entitlement is commonly referred to as bank and concessionary holidays. They are not concessionary in the sense that they are given outside the rights of the contract; they are rights under the contract but they are different and separate from rights to annual leave; they are also of course different and separate from rights to maternity leave.During their maternity leave the Appellants received their full maternity pay but they received no extra benefit, either financial or in terms of extra leave, to reflect the fact that during those Bank Holidays and concessionary days they would if at work have been on leave and their case is there should be some extra compensation or reflection of that fact. In fact they put it before the Industrial Tribunal and before us as being an entitlement to days off in lieu.The complaint to the Industrial Tribunal raised two matters. One was that the failure to give them days off in lieu was in contravention of their rights under Section 71 of the Employment Rights Act 1996 and the other was that it was discrimination contrary to the Sex Discrimination Act of 1975 and the Treaty of Rome. Those are two quite separate matters. The argument on the appeal before us has been conducted solely in terms of Section 71 and we think that part of the way in which the arguments presented to us have gone really amounts to taking paragraphs in the Tribunal's reasons which are directed to comparisons with other persons, and therefore must be concerned with the Sex Discrimination point, and reading them as the Tribunal's reasons for dismissing the Section 71 complaint, because the Tribunal did in fact dismiss both complaints.Section 71 provides in sub-section (1) that:
"An employee who is absent from work at any time during her maternity leave period is ... [subject to certain other sections which do not come into question here] entitled to the benefit of the terms and conditions of employment which would have been applicable to her if she had not been absent (and had not been pregnant or given birth to a child)."
Sub-section (2) provides that:

"Sub-section (1) does not confer any entitlement to remuneration"

But remuneration does not come into this case because it is common ground that the Appellants were paid during their maternity leave.In our understanding the reasons why the Tribunal rejected the Section 71 claim are to be found in paragraph 7 of their reasons, where they say:
"We have come to the conclusion that the Respondent's argument is correct and the Applicants' argument incorrect."
and in the beginning of paragraph 11 where they say:
"In all, the Tribunal prefers to the Respondent's arguments. There has been no breach of Section 71 of the Employment Rights Act 1996 . The Applicants were paid throughout their maternity leave at the correct rate, neither more or less."
So it is in our view clear that the primary reason why the Tribunal rejected the Section 71 complaint was that they accepted the Respondents arguments, which had been submitted in writing and a copy of which we have. Those arguments extend to several pages, but the nub of them for present purposes is to be found in one or two fairly short passages. In paragraph 1.5 of that argument the Respondents say:
"It is a fact that, during the first 14 weeks of each of the Applicants' maternity leave to which Section 71 of the Employment Rights Act 1996 applies they were in receipt of full pay for all the Bank Holidays and concessionary days that fell during this time"
and then in paragraph 2.6 they say that:
"Section 71 has not been breached. It provides that [etc. they para-phrase it and they continue] If the Applicants had not been absent they would have been granted leave with pay on those days, [Bank Holidays etc.]
The Applicants were absent on some Bank Holidays during the first 14 weeks of their maternity leave and they were on leave with pay on those days. There are no provisions for taking Bank Holiday leave on days other than those on which they fall, so the reason for the Tribunal's rejection of the Section 71 complaint is in our understanding fairly and squarely that what the Applicants were entitled to under Clause 3.6 was leave with pay on the relevant days. They were on leave with pay on those days. The fact that they were on leave with pay on those days for two separate reasons does not mean that there was any breach of Clause 3.6 or any derogation from their rights under Section 71 to be entitled to the benefits of the terms and conditions of the employment which would have been applicable had they not been absent. Those are the grounds for the Tribunal's decision and we, for our part, see no error in them.It is of course true as an economic fact that if an employee is entitled for two separate reasons to be off with pay on the same day then that person is worse off than if the two reasons had fallen on different days so that both would have been added chronologically. It is also true that there are several circumstances under this contract where that addition does in fact happen. No one is obliged to take his or her annual leave for a period which includes a Bank Holiday; annual leave can always be taken so as to be additional to Bank Holidays. It is the practice, we understand, for fathers to have five days' paternity leave, and since those are expressed in terms of five days rather than a chronologically continuous period of 14 weeks it is obviously possible for a father to pick the five days so as not to include a Bank Holiday. The economic difference is perfectly plain but the question is whether there is any breach of Section 71 by deprivation of the benefit of a term or a condition of employment which would have been applicable had the mother or prospective mother not been absent and in our view there is no deprivation.The matter is indeed very neatly chrystalised by the way in which Mr Higgins behalf of the Appellants put the matter, that they have lost their day's leave on the Bank Holiday because you cannot be, he says, on maternity leave and on Bank Holiday leave at the same time, but unfortunately that flies in the face of ordinary understanding and common-sense. One can be on leave both by reason of maternity leave and because it is a Bank Holiday on the same day, and that really in our view is the end of the matter so far as the appeal against the decision of the Tribunal on that point is concerned, but we need to deal with various arguments which were put forward by Mr Higgins.The first is that the Tribunal, he says, wrongly relied on Clause 8.7 of the contract, which provides that there will be no entitlement to time off in lieu for sickness over a Bank Holiday or a concessionary holiday, and he submits that the Tribunal wrongly applied that by way of analogy to the situation of maternity leave. It is perfectly true that in paragraph 4 of the reasons the Tribunal in reciting the relevant terms and conditions of employment does refer to Clause 8.7 as well as Clause 3.6. At that stage they make no comment whatsoever on its relevance, so no conclusion can be drawn from that.Paragraph 8 of their reasons refers to Clause 8.7 again. It reads:
"There is no doubt that under the terms and conditions of employment it is specifically stated under Clause 8.7 that there is no entitlement to time off in lieu of sickness over a Bank Holiday or a concesssionary holiday. The only argument that can avail the Applicants is if there has been a breach of some other piece of legislation and this we find has not occurred."
We must confess that we do find that paragraph extraordinarily opaque, but as I have already said we have concluded that the true reason for the rejection of the Section 71 complaint is quite plainly that the Tribunal accepted the arguments of the Respondents and in the arguments of the Respondents which I have quoted there are reasons which in our view were perfectly sound for that rejection.Mr Higgins also submitted, in response to a suggestion from this Tribunal, that the effect of Section 71 is that a person on maternity leave must be treated as if working, and so far that must be right, because to say that she is entitled to the benefits that 'would have been applicable if she had not been absent' can be expressed positively by saying 'as if she had been working', and he says that if she had been working the Bank Holiday would have been an extra day off. She would be entitled to stay away and still be paid. Certainly she would, but that simply comes back to the basic point from which we start, that on the Bank Holidays in question she was off work and she was paid - as it happens for two reasons, but that does not deprive her of the benefit of Clause 3.6.He then further draws attention to paragraph 11 of the Tribunal's reasons, where after the opening sentences which I have already quoted the Tribunal goes on to deal with a comparison with paternity leave and say:
"While it is true a man has the ability to take his leave around the time of a Bank Holiday we accept that likewise the starting date of maternity leave is also within the choice of a woman who is pregnant."
Mr Higgins submits, and we see some force in this, that the position of a woman choosing when to take maternity leave is more constricted than that of a man taking paternity leave for, he says two reasons but certainly one important reason namely that her 14 weeks maternity leave has to be continuous, whereas he can pick his days so as to avoid a Bank Holiday, but in that passage, as in another passage on which Mr Higgins relies, it seems clear that the Tribunal must have been directing their minds towards the discrimination claim rather than the Section 71 claim, because comparisons are not relevant to a Section 71 claim, where the only question is has there been any deprivation of the benefit of the contract, whereas in the discrimination claim comparisons are central and, as I have said, this appeal was argued in terms of the Section 71 point.In any event, whatever the merits of the comparison with the man on paternity leave in paragraph 11, the comparison in paragraph 10 between a woman on maternity leave and a woman on sick leave would, in our view, be relevant to the discrimination point and we see no error in the Tribunal's taking that into account on the discrimination point, although as I have said the discrimination element is not one that has been argued before us.Next Mr Higgins referred to paragraph 12 of the Tribunal's reasons, in which they say that they do not find the case of Gillespie v Northern Health & Social Services Board [1996] IRLR 214 of great assistance. He said that that was wrong; Gillespie is of great assistance because it establishes a which applies here. Gillespie was a case where during maternity leave there was a pay rise for the rest of the employees which the complainants did not receive and it was held that they were entitled to the benefit of that. In our view, the only general principle that can be derived from Gillespie is that Section 71 must be applied where that is the issue and there must be no discrimination where that is the issue. It does not help at all on the very different facts that we have before us here, and which the Tribunal had before it, and the Tribunal, in our view, was absolutely right to say that that case was of no particular assistance.Another submission which Mr Higgins made, again in response to a suggestion from this Tribunal, was that Bank Holiday entitlement under paragraph 3.6 should be treated in the same way as annual leave, it being, as we understand it, not in dispute that a woman who has maternity leave is perfectly entitled to take her annual leave in such a way as not to overlap with that but to be additional to it, and indeed there seems to be a practice in this employment of taking it immediately following maternity leave so as to add them on, but that, although a perfectly valid bargaining point to be made in constructing any contract of employment - the argument that there should be parity of treatment between annual leave and Bank Holiday leave when it comes to their incidents and inter-relation with maternity leave - is just that. It is not a ground for saying that Section 71 and Clause 3.6 of the Contract can be construed as conferring greater rights than, as we have held, the Industrial Tribunal properly found they did confer.For those reasons we have come to the conclusion that there is no arguable ground for appealing against the decision of the Industrial Tribunal and that appeal must be dismissed. There is, however, a separate point because Mr Higgins wishes us to entertain an argument which as he accepts was not before the Tribunal at all, namely, that even after the 14 weeks' statutory maternity leave the contract itself entitles persons in the position of the Appellants to time off in lieu of Bank Holidays which fall within any extended leave which is agreed between them and the employer, and which as I have said seems in practice to be habitually granted by way of tacking on the annual leave to the maternity leave.That point, as I have said, was not taken below. It is referred to, or at least one can understand that there is properly understood a reference to it, in a letter which accompanied the Notice of Appeal to this Tribunal, but we consider that we should follow the normal rule and practice of this Appeal Tribunal of not permitting points to be taken which were not argued below. We see no ground on which this is an exceptional case where we should go outside that general practice, not least because this point cannot be stronger and probably is weaker than the main point on which we have rejected the appeal, because if this point were taken it would not have the benefit of Section 71; it would turn purely on the terms of the contract, and for those reasons we reject that additional ground of appeal also insofar as it is before us.