MRS M RASHID v ASIAN COMMUNITY CARE SERVICES LTD [2000] UKEAT 480_99_1611

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 480_99_1611Case No Appeal No. EAT/480/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M RASHIDAPPELLANTASIAN COMMUNITY CARE SERVICES LTDRESPONDENT
Before
Mr Justice Bell Mr K EdmondsonDate 16 November 2000
[1]APPEARANCES For the Appellant MR R THACKER (of Counsel) Law for All Southall Law Shop 37 Hunt Road Southall Middlesex UB2 4QB For the Respondents MR J DEAN (of Counsel) Messrs Ebraham & Co Solicitors 66a Ealing Road Wembley Middlesex HA0 4TH MR JUSTICE BELL : This is an appeal by the applicant Mrs Mehjabeen Rashid against the decision of the Employment Tribunal held at London (North) on 1st and 2nd February 1999. The decision was sent to the parties and entered in the Register on 8th February 1999. The decision was to the effect that the complaint of the applicant, now appellant, of sex discrimination failed. There is no real issue about the circumstances of the appellant's employment by the respondent. The real issue is about when and in what circumstances her employment ended.[2]The facts found by the Employment Tribunal and its conclusions are set out with admirable clarity in its extended reasons for its decision. [ Paragraph 2 ] The respondent is a small voluntary organisation providing care and other services to elderly and disabled Asian people. It depends upon short-term contract funding from local authorities, health authorities and private trusts. The tribunal accepted the evidence Mr M Jeewa, its director, that staff were employed upon short-term temporary contracts because of the uncertainty of renewal of funding. [ Paragraph 3 ] Mrs Rashid, who must have been then aged about 30, commenced employment as a Community Care Assistant on 17th March 1997. She was given a contract dated 21st March 1997 expressing her position as temporary for a period of up to three months commencing week 17th March 1997. The contract was expressed to be terminable by one week's notice from either side. [ Paragraph 4 ] The tribunal heard evidence that the respondent was a small organisation and that its paperwork was not always up to date. When the first three month contract expired on 16th June 1997 it was not immediately replaced with a new written contract. Mrs Rashid was promoted to the position of temporary part-time Co-ordinator working on the Elders Project with effect from 30th June 1997. She was given another temporary contract for that post. The document was undated but stated that the position was temporary and part-time for a period of up to three months commencing on 30th June 1997. Mrs Rashid worked on when the three month temporary contract expired on 29th September 1997, although no written contract of employment was issued. [ Paragraph 5 ] In June or July 1997 Mrs Rashid had discovered that she was pregnant. She had a good relationship with Mr Jeewa, and her account was that she had a meeting with him in November 1997 to tell him that she was pregnant and to make arrangements for maternity leave. There was a conflict of evidence because Mr Jeewa said that no such meeting took place. There was no corroborative evidence one way or another and the tribunal found on the balance of probabilities that Mrs Rashid had not proved that a meeting took place in November 1997 as she said. Mr Jeewa went to Burma on 11th November and was away for the rest of the year. [ Paragraph 6 ] On 20th January 1998 Mrs Rashid presented a written complaint about a fellow employee, but that does not appear to have played any part in what happened thereafter. [ Paragraph 7 ] By a letter dated 26th January 1998 from Mrs Rashid to Mr Jeewa, Mrs Rashid said:
"I write to inform you of my intention to leave for maternity, my last day in service being Wednesday 11 February 1998. It is my intention to return to work if you would so kindly accept me back. I would estimate my time off to be approximately six months if this is suitable to you." [ Paragraph 8 ] By a letter which the tribunal described as erroneously dated 4th January but intended to be dated 4th February 1998, Mrs Rashid again wrote to the respondent. She said: "
I intend to come back to work after maternity leave in October 1998 upon verbal agreement with Mr Jeewa. I would like this agreement in writing within the next five days." [ Paragraph 9 ] Mr Jeewa told the tribunal that there had been no verbal agreement and that he had indicated to Mrs Rashid that if subsequent vacancies arose within the respondent she was welcome to apply for them. [ Paragraph 10 ] Mrs Rashid's last day of service with the respondent was 11th February 1998 and on 13th February 1998 she commenced her maternity leave. [ Paragraph 12 ] On 17th February 1998 Mrs Rashid sent a memorandum to Mr Jeewa asking him for a letter of confirmation regarding her return to employment after maternity leave and insisting on a reply by 27th February. [ Paragraph 11 ] By a letter dated 30th March 1998 from Mrs Rashid to Mr Jeewa she stated:
"Finally, I would be grateful if you would kindly let me know when I can return to work in writing, again within seven days. I note I have asked this several times both verbally and in writing following our verbal agreement before I left for maternity leave, but as yet you have failed to respond and again it may be in both our interests to have an independent party in this matter to secure my interests." [ Paragraph 13 ] Mrs Rashid's baby was born 23rd March 1998. [ Paragraph 14 ] On 14th April Mrs Rashid wrote to Mr Jeewa yet again, this time as follows: "
Would you kindly confirm whether my post is still open to me as I have now had my baby. If you wish to terminate my employment please inform me so I may find alternative employment." [ Paragraph 15 ] Mrs Rashid wrote again to Mr Jeewa. The tribunal described the letter as written on 5th May. Mr Dean for the respondent pointed out to us today and Mr Thacker for the appellant, having checked the relevant photocopy, accepts that in fact the envelope is post-marked 6th June. Although that matter, so far as we are aware was not brought to the tribunal's attention, and they certainly made no ruling on any dispute about the correct date of the letter, it occurs to us that the correct date may well have been 6th June or I suppose perhaps a day earlier. That would be consistent with Mrs Rashid erroneously dating a letter which should have been 4th February the 4th January. In any event that latest letter contained the following statement:
"I write to you once again with regards to my intention of returning to work as per our mutual verbal agreement. Please would you kindly let me know of the date I may return as soon as possible. If you feel you no longer want to have me in the post for Co-ordinator for the Elders Project kindly let me know in writing and return my P45 so I may claim benefits or pursue another job …"
Mrs Rashid did not contact the respondent again after sending that letter. She had no reply to any of the letters to which we have so far referred. [ Paragraph 16 ] The respondent paid Mrs Rashid statutory maternity pay up to 30th June 1998 and by a letter dated 10th July 1998 sent a final payslip, cheque and P45 and stated shortly:
"Unfortunately we will not be renewing your contract."
[3]The tribunal's decision, having set out those facts, continued as follows:
"16 … Having taken into account all the evidence we find that when the three month fixed term contract expired on 29 September 1997 and Mrs Rashid continued working there was, thereafter, a contract continuing at will determinable by one week's notice by either side."
In our view that was a correct assessment of the situation. The decision continued:
"17 The next issue for determination by the Tribunal is the issue of when Mrs Rashid's employment with the Respondent came to an end. We noted that neither of the parties representatives addressed these issues in their submissions … 18 In determining the effective date of termination of Mrs Rashid's employment we took the following matters into account: (a) Mrs Rashid's letter of 26 January 1998 indicates an intention to take maternity leave with the last day of service before taking that leave being 11 February 1998. (b) The right to return to work after maternity leave is conferred by section 79(1) of the Employment Rights Act 1996 and requires the employee at the beginning of the 11th week before the expected week of childbirth to have been continuously employed for a period of not less than two years. Mrs Rashid had less than two years' service and accordingly had no right to return to work."
Again, in our view, the tribunal was quite correct about that.[4]The tribunal then went on to consider various provisions which meant that Mrs Rashid's 14 weeks of entitlement to maternity leave would expire on 20th May 1998. Counsel before us today are agreed that the 18-week period of maternity pay would expire four weeks after that date, namely on 18th June 1998.[5]The tribunal went on to state at paragraph 18:
"(d) During the period of 14 weeks' maternity leave the contract of employment of Mrs Rashid continued. The Respondent paid Mrs Rashid statutory maternity pay which was evidence that the Respondent thought that the employment was continuing. (e) During the 14 weeks statutory maternity leave period Mrs Rashid wrote a number of letters culminating in her letter of 5 May 1998. All those letters asked when she could return to work and are expressed in terms of a request. The letter of 20 January particularly refers to "if you would kindly accept me back"
. We are not satisfied on the balance of probabilities that any agreement was reached between Mrs Rashid and Mr Jeewa in November or in January 1998 that she would be entitled to any specific period of maternity leave. (g) It was clear from the evidence that Mrs Rashid wanted to have six months' off for maternity leave and there is no evidence of any agreement by the Respondent that they would take her back at the end of this period. Indeed, we accept the evidence of Mr Jeewa that by the nature of the funding of the Respondent if any employee was absent for a period of a month then their employment could not be sustained. (h) We accept the evidence of Mr Jeewa that he told Mrs Rashid that she was welcome to apply for jobs that might become available in the future."[6]The tribunal then came to its conclusions in the following terms:
"(i) Mrs Rashid's maternity leave expired on 20 May 1998. She did not return to work the following day on 21 May 1998 nor did she make any contact with the Respondent on that day or thereafter."
We interpose there that of course if the postmark on the envelope on the last letter indicates when it was actually sent, she did make contact or attempt to do so early in June. Continuing with the tribunal's conclusion:
"(j) Since Mrs Rashid was only entitled to 14 weeks' maternity leave by statute and did not return when the period had elapsed it is the unanimous decision of the Tribunal that she repudiated her contract of employment on 21 May 1998 which is the effective date of termination of her employment. We note that the Respondent, in ignorance, continued to pay statutory maternity pay and the Respondent's loss in respect of that lies where it falls."
[7]The tribunal then turned to the complaint of sex discrimination. It concluded in paragraph 21:
"We have already found that Mrs Rashid repudiated her contract by not returning to work after the expiry of her maternity leave period. Accordingly, this is not a dismissal and cannot be a dismissal because of Mrs Rashid's pregnancy. Mrs Rashid has not discharged the burden of proof upon her of showing less favourable treatment on the grounds of her sex and it is the unanimous decision of the Tribunal that her complaint of sex discrimination fails."
Then a little later at paragraph 23:
"The Tribunal noted that since the effective date of termination of Mrs Rashid's employment was 21 May 1998, the three month period for presenting an Originating Application complaining of sex discrimination prescribed by section 76(1) of the Sex Discrimination Act 1975, would have expired on 20 August 1998 and the Originating Application was presented to the Employment Tribunals on 2 October 1998. We heard no evidence as to why the Originating Application was not presented earlier and it is therefore our unanimous decision that the Originating Application was presented out of time although this has only become apparent as a result of our decision as to the effective date of termination of employment today."
[8]Just as the parties' representatives before the tribunal seem to have missed the significance of the actual date and circumstances of termination of the appellant's employment, so did her grounds of appeal, some of which positively suggested a date of termination of employment even earlier than 21st May 1998 and therefore placed her application even more out of time than the tribunal found.[9]We hasten to add that Mr Thacker who represents the appellant today did not represent her before the tribunal nor did he settle grounds of appeal, although the argument which he has drafted has been of considerable value to us today.[10]At the preliminary hearing by the Employment Appeal Tribunal on 21st July 1999, the Appeal Tribunal, differently constituted to today, identified the important issues and questions raised on the appeal as follows:
"(1) was the tribunal wrong to find that the contract was terminated by the appellant on 21st May, rather than by dismissal by the respondent on 10th July 1998. (2) if she was dismissed on 10th July, then: (a) the claim was presented within time, but (b) was that dismissal discriminatory on the grounds of her sex?"
[11]The primary question is when and how the appellant's contract of employment was terminated and how and by whom. It seems to us, as it seemed to the Appeal Tribunal at the preliminary hearing, that there are really only two candidates for the correct date of termination of the contract. Either it was terminated by the appellant's own failure to return to work on 21st May 1998 or it ran on until the respondent dismissed her on 10th July 1998.[12]In his skeleton argument and oral argument before us today Mr Dean for the respondent has suggested that the appellant's own letter of 26th January 1998 operated as a notice to terminate her employment. He contends that that letter indicates that she intended and was aware that the letter was and would be treated by the respondent as notice of her intention to terminate her employment.[13]Quite apart from the difficulty which we have in putting any such construction upon that letter, Mr Dean faces what seems to us to be the insurmountable hurdle that that suggestion was never put to the appellant at the Employment Tribunal and so far as we are aware that interpretation of the letter was never canvassed, or at least not fully canvassed, with Mr Jeewa himself. We reject any suggestion therefore that the end of 26th January 1998 is yet a third possible date for the termination of Mrs Rashid's employment.[14]We understand why the tribunal should have come to the decision which it did in this case, particularly when it had had no argument from Counsel as to just what the correct date of termination of the appellant's contract of employment was. However, the difficulty we have with the tribunal's decision is that the appellant's contract of employment could not simply evaporate when she did not return to work on 21st May 1998. Her failure to return on that date, if it was to have the effect of terminating her contract of employment, had to amount to a positive repudiation of her contract of employment. We remind ourselves that the respondent is a department on short term funding with the result that staff were employed on short-term temporary contracts, although in fact in the appellant's case by the material time, her contract of employment was a contract of will and no longer for a fixed term long or short. We also remind ourselves that the tribunal accepted Mr Jeewa's evidence that there was no verbal agreement for the appellant's return to work after the end of her maternity leave and that he indicated that she was welcome to apply if vacancies arose, which can be taken to indicate that he was treating it as necessary for her apply if she was to be employed by the respondent. On the other hand from the time of her 26th January 1998 letter the appellant repeatedly wrote indicating that she wished to return to work with the respondent at some time hopefully to be agreed. Although the respondent did not expressly agree to that, it did not reply to her letters quashing her expectation or her hope to return, which it could so easily have done. Since the appellant's last day of work with the respondent before her maternity leave was 11th February 1998 and she was only entitled to 14 weeks' maternity leave, and 18 weeks' maternity pay, her maternity leave expired on 20th May 1998 and the 18 weeks' entitlement to pay, as we have already said, expired on 17th June 1998. She did not present herself at work on 21st May thereafter, but it does appear that she sent a letter at or about the beginning of June 1998, after 20th May but while she was still receiving maternity pay. She clearly expressed in that letter a desire to return to work at some stage. Moreover, she continued to receive her maternity pay up to 30th June 1998, that is for about two weeks longer than was required by statute. The tribunal said that the maternity pay was paid in ignorance by the respondent and we bear mind what Lord Johnston said in Macpherson v Drumpark House [1997] IRLR 277 at page 279, paragraph 11, to the effect that:
"… as a matter of generality, maternity leave payments over the statutory period to which the employee is entitled, are in themselves no more than neutral to the question of whether or not the contract of employment subsists …"
But the matters which we have set out and particularly the appellant's frequently stated wish to return to work, seem to us to be quite inconsistent with an intention on her part positively to repudiate (that is to reject) her contract of employment on 21st May 1998. It seems to us to be impossible to infer repudiation from a failure to return to work on 21st May 1998, just from the facts that she did not come to work and had not got an agreed extension to stay away when the respondent was continuing to pay her, even beyond the period of statutory entitlement to maternity pay. One may rhetorically ask: 'What was there in those circumstances to put her on notice that she would be treated as being in repudiatory breach of contract if she did not return to work'.[15]The reality seems to us to be that the appellant was left in limbo by the respondent so far as her employment was concerned by the respondent's failure to answer her various letters. In our view, respect though we have for the way this particular tribunal's decision was thought out and expressed, it cannot rightly be concluded from the material before the tribunal that the contract of employment came to an end by virtue of the appellant's repudiation of it, accepted or not by the respondent on 21st May 1998.[16]That leaves only the 10th July as the alternative date of termination of the contract. It occurs to us that the terms of that letter and its enclosure could well have been produced by the letter postmarked 6th June 1998 which, as we have already said, contained the words:
"If you feel you no longer want to have me in the post for co-ordinator for the Elders Project kindly let me know in writing and return by P45 so I may claim benefits or pursue another job"
[17]For all these reasons, in our view, the correct decision with regard to the termination of the appellant's contract of service upon the evidence before the tribunal was that the contract of employment was not terminated until 10th July and then by the respondent itself.[18]We appreciate that we should not readily overturn a tribunal's finding on a question such as this, but the finding as to termination of the contract was a secondary finding upon primary findings as to what actually occurred.[19]The next question is, therefore, whether the termination of the appellant's contract of employment was an act of sex discrimination or indeed whether any other part of the respondent's conduct can be treated as such.[20]We have heard arguments from Counsel on each side suggesting that we can make a decision about discrimination one way or another. We have come to the unanimous decision that we cannot do so. The tribunal did not go into the question of discrimination in any depth because once it had decided that the appellant had in effect dismissed herself and that in any event her claim was out of time, there was no need to do so. What we propose to do therefore is to allow this appeal, deciding that the correct date of termination of the contract of employment was 10th July 1998, terminated by the respondent rather than by the appellant, and remit the question of sex discrimination to the Employment Tribunal for determination. We leave the constitution of the tribunal entirely to the Regional Chairman.