MRS J LUCK v LONDON BOROUGH OF TOWER HAMLETS [2001] UKEAT 252_01_2009

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 252_01_2009Case No Appeal No. EAT/252/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J LUCKAPPELLANTLONDON BOROUGH OF TOWER HAMLETSRESPONDENT
Before
His Honour Judge D SerotaDate 20 September 2001
[1]APPEARANCES For the Appellant MS NAOMI CUNNINGHAM (of Counsel) Instructed by: Free Representation Unit 4th Floor 8 - 14 Verulam Street London WC1X 8LZ JUDGE D SEROTA QC This is a preliminary hearing on an appeal by Mrs J L Luck from a Decision of the Employment Tribunal sitting at Stratford that there had been breaches of contract by her employer, the London Borough of Tower Hamlets, but not as extensive as claimed by Mrs Luck, and in which her claim of self discrimination was rejected. There is no appeal against that part of the Decision.[2]The appeal arises from the circumstances in which Mrs Luck sought to return from her career break. She had joined the council, the London Borough of Tower Hamlets, in 1988 as a Payroll Officer, and by October 1992 had risen to the post of Senior Payroll Officer.[3]In January 1993 she began to work part time on a job-share basis. At that time, the council's payroll was decentralised and operated from a number of local or neighbourhood offices, but in May 1994 after a change of political control, the council decided to alter its payroll services, and centralise them. This policy was put into effect at the end of March 1995 and led to a reduction in the number of payroll posts.[4]On 6 March 1994 we should recall that Mrs Luck went on maternity leave. She gave notice to return to work on 25 January 1995, that is she would return to work on 17 February. She asked whether she might take leave, by way of holiday entitlement to 31 March, and that request was granted.[5]On 14 March, she was offered an assimilation interview to make arrangements for her return to work, her original post having disappeared, but she failed to attend. The council needed to know fairly urgently what her position was, and as a result of her failure to attend the assimilation interview, a job that might have been available for her fell through.[6]On 30 March 1995, Mrs Luck sought one month's paid leave and this was granted. On 20 April 1995, she wrote to the council making various allegations which form part of her discrimination claim, but those have been rejected and we need not therefore consider them further, but she also sought a career break.[7]On 24 May 1995, her career break was granted. An agreement, or a letter signed by her dated 27 June 1995, setting out certain matters in relation to the career break agreement was returned to the council, but unfortunately she was not supplied with a copy at the time.[8]A time came when she wished to return to work. On 13 October 1997, she wrote to the council asking that the council should confirm the latest date for her return to work, as she had never received this information. In fact she had received the information, but had evidently forgotten, not having been supplied with a copy of the letter she had signed in June 1995, the latest date she was supposed to return to work was at the end of May 1997. In that letter she made it clear that she was on a career break which was drawing to a close, and she was writing to make arrangements for her return to work.[9]It was suggested that this letter in fact was a notice of her intention to return to work. We will turn to the terms of the scheme in the letter of June 1995 later. So far as this letter is concerned, the Employment Tribunal determined it was not an appropriate notice, and although it is referred to in the Notice of Appeal, Ms Cunningham has indicated that she does not intend to pursue that particular submission.[10]On 17 October 1997 a letter was sent by the council. The letter is unfortunate in a number of respects: firstly because it treated the letter of 13 October 1997 as an intimation that Mrs Luck intended to return to work in three months: that is clearly wrong. Secondly, it supplied her with the wrong terminal date for the expiry of her career break agreement. It wrongly identified the last available date of return to work as January, rather than May.[11]It was submitted that this letter would constitute the appropriate notice under the scheme but this construction of the letter was rejected by the Employment Tribunal. In fact, notice of intention to return to work was given on 2 February, giving her date of return as 29 May 1998.[12]On 6 July Mrs Luck returned to her supernumerary post. She complained that the fact that she was offered a supernumerary post only, amounted to discrimination, an allegation rejected by the Employment Tribunal, and we have already said we need not discuss this particular matter further, as there is no appeal in that regard.[13]The complaints made by Mrs Luck in relation to breach of contract and sex discrimination were heard at the Employment Tribunal on 30 May over five days and their Decision was promulgated on 21 December of last year.[14]The first submission made by Ms Cunningham is that the Employment Tribunal fell into error when it determined that the right to priority under the career break scheme, that is the right to be offered vacant posts in priority to anybody else, was only triggered when the appropriate notice of return to work had been given.[15]The redeployment scheme which is referred to in the letter of 24 May 1995, makes clear that:
"Those people registered for this scheme will keep their names on the register initially for a period of 3 years. A review will then be carried out of those who had not returned at the end of that period. A decision would then be taken whether to retain the individuals for a further period depending on the circumstances involved. While 3 years absence is the basic entitlement, returners will not be prevented from returning sooner."
The scheme then provides:
"Returners are obliged to give twelve weeks notice of the intended return to work date. This period of notice may be reduced if the appropriate Chief Officer is agreeable."
The scheme then goes on to provide:
"The right to return will be to the original substantive post or a similar job….." as defined "
The returner's previous Neighbourhood/Department would be responsible for ensuring a "similar job" was available. At this stage the right to return will be to a job in the returner's original Neighbourhood or Department. If the Neighbourhood or Department is unable to provide a similar job for the returner, it would be their responsibility to find a suitable post in another Neighbourhood or Department.

(e) of the scheme provides as follows:

"The process of finding another post will be in the following order and precedence - - Neighbourhoods and Departments will give priority to Career Break Returners for vacant posts. The Personnel Policy Group will consider placement of Returners according to suitable vacant posts. - The responsible Neighbourhood or Department will create a supernumerary position at the appropriate grade, if no suitable position is available, Notice of Return may be extended by mutual agreement."
We also note that throughout the period under Clause 6 of the scheme, the council have various obligations included to:
"Maintain the Neighbourhood/Central Departments register and send an annual letter to the prospective returner asking whether they are still interested in remaining on the register" and those obligations included to: "
Maintain the Neighbourhood/Central Departments register and send an annual letter to prospective returners asking whether they are still interested in remaining on the register ….." Be responsible for keeping the retainees informed of vacancies, both temporary and permanent. The vacancies Bulletin must be sent to the home address regularly."[16]It is submitted on behalf of Mrs Luck by Ms Cunningham, that the only effective way in which the Council could comply with its obligations under Clause 6 would be to construe the right to priority under Clause 5 as applying throughout the course of the career break, whether notice of intention to return under Clause 5(a) had been given or not. Ms Cunningham did not shrink from the submission that this meant that every person who had taken extended leave of absence under the Career Break Scheme would, if their original job was not available, be entitled to priority for any other job which became vacant, regardless of the fact that they had not given an indication to return to work within a period of not less than twelve weeks as provided for in 5(a).[17]This submission was similarly made to the Employment Tribunal and the Employment Tribunal came to the conclusion that on a true construction of the scheme, priority was only triggered by an appropriate notice of their intention to return to work under Clause 5(a).[18]It seems to us that the construction of the agreement by the Tribunal in Clause 26 is unexceptional. Paragraph 5(e) required a definition of "career break returner" and it seems to us that the Tribunal was absolutely correct and the contrary is unarguable that it only applied to someone who had given written notice of at least three months of a certain date of return. The term "career break returner" is clearly to be distinguished from "prospective returner". A prospective returner only becomes a "career break returner" when notice has been given. It seems to us that otherwise it would be quite impossible for the council to work the scheme at all. It would not be known for example, in many cases, whether or not the prospective career break returner's original post would be filled or not unless the council knew the specific date upon which the prospective career break returner was returning. It seems to us in those circumstances that the arguments put forward on behalf of Mrs Luck that there was no time limit in relation to the right to priority, has no realistic chance of success, and we would be minded to dismiss the appeal insofar as it relates to that ground.[19]Ms Cunningham has a second submission however, and this relates to the construction of the letter of 30 October. As we have mentioned, the Employment Tribunal came to the conclusion, so far as this letter was concerned, that the career break agreement required a three month written notice which should be definite and certain, and that this letter was insufficiently clear and certain. As Ms Cunningham has pointed out, the construction of a letter is a matter of law and having read the letter, and had the benefit if Ms Cunningham's submissions of it, we have come to the conclusion that there is a fairly arguable point raised by Mrs Luck that this letter does, in fact, comply with the obligation to give notice, as set out in Clause 5(a) of the scheme. The letter makes it clear that she intends to return to work, that her last day is 2 April 1998 but she was willing to return earlier.[20]In those circumstances we say no more about the merits of the submission other than to say that it seems to us fairly arguable. We are minded therefore to allow the appeal to go forward on that ground only, and it seems to us that this matter should be treated as having listing Category C. It is likely to last two hours only, and we will require both sides to lodge Skeleton Arguments, together with any copy of authorities, fourteen days before the date fixed for the hearing of the appeal. Before we conclude we would like to express our gratitude to Ms Cunningham and the Free Representation Unit for the assistance they have offered Mrs Luck.