Appeal No. EAT/485/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 21 October 1992
	Judgment delivered on 16 December 1992

	Before

	HIS HONOUR JUDGE J HULL QC

	MR T S BATHO

	MR R JACKSON

MRS J TAMBLING	APPELLANT

COLLMAIN CUSTOMER SERVICES LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr Geoff Chaplin
(Representative)
Brighton Agents Advice
    Centre
102A North Road
Brighton
BN1 1YF

HIS HONOUR JUDGE HULL QC     These are the Reasons of the Employment Appeal Tribunal for unanimously dismissing the appeal of Mrs Tambling.

	The Appellant was employed by the Respondent as a senior administrator, starting on 16th January 1989.  On 6th September 1991 she left the Respondent temporarily; she was expecting a child, who was in fact born on 18th October 1991.  She had given the appropriate notice under S.33(3) of the Employment Protection (Consolidation) Act 1978 that she intended to return to work in due course, thus laying the foundation for the exercise of her right to return to work under S.33(1).

	On 8th January 1992 Mrs Tambling, who had not yet returned to work, was invited to call on the Respondent.  She was told that her job was redundant, and was offered a part-time job instead.  She told the Respondent that she wanted time to think about this.  On 15th January 1992 the Respondent wrote to her setting out the redundancy pay she would receive; but this was expressly subject to her decision about whether to accept redundancy, or to take the part-time job.

	Mrs Tambling decided that she wished to exercise her right to return to work.  On 17th January 1992 she wrote a letter of which we have seen a copy.  She rejected the offer of a part-time job and gave formal notification that she intended to return from her statutory maternity leave to her former position as a senior administrator on 27th January.

	On 22nd January the Respondent wrote confirming Mrs Tambling's redundancy, and calculating her redundancy payment; this money was sent to her in due course.  Mrs Tambling treated this letter as a dismissal.  She applied to the Industrial Tribunal complaining that she had been unfairly dismissed by "unfair selection for redundancy".  She also complained of sexual discrimination, but the Industrial Tribunal apparently heard nothing about this and we did not hear any argument about it on her appeal.

	In her application to the Industrial Tribunal Mrs Tambling said that she was dismissed on 22nd January 1992, and she repeated this in evidence to the Tribunal.  Despite this, the question whether she was dismissed either on 8th January or 15th January 1992 was considered by the Tribunal, which held that she was not dismissed on either date, "and further that [she] had no contractual right to return to work either under the original contract of employment or as subsequently varied by consent.  We find that this case is on all fours with Lavery v. Plessey".

	Mr Chaplin, who appeared for Mrs Tambling before us and also before the Industrial Tribunal, complained of the part of the decision to which we have referred.  He attempted to contend that Mrs Tambling had been dismissed either on 8th or 15th January.  He was obliged to admit that this was contrary to the case that had been put to the Industrial Tribunal.  As we understand it, the Industrial Tribunal must be taken to have decided that the contract of employment continued until 22nd January 1992, but that it contained no express provision with regard to Mrs Tambling's return to work.  In these circumstances there might well be implied a contractual right to return, but this would necessarily be subject to an implication that a proper notice was to be served under S.47 of the Act - see Lavery v. Plessey Telecommunications Ltd [1982] IRLR 180, 182 at the end of paragraph 14; and in the Court of Appeal [1983] ICR 534.  If the contract of employment was no longer in existence on 22nd January, then of course Mrs Tambling could not in any event complain of unfair dismissal on that date or any later date, except under the statutory provisions relating to her right to return to work.

	Mr Chaplin then contended that the contract of employment indeed continued until, and was terminated on, 22nd January 1992, but he conceded on that basis that if Mrs Tambling had any right to return under her contract, her dismissal occurred "in the course of [her] attempting to return to work in accordance with her contract in circumstances in which S.48 applies", under paragraph 6(2) of the Second Schedule to the 1978 Act, so that she could not "be taken to be dismissed during the period of her absence"; accordingly she could not, on the face of it, complain of unfair dismissal under S.54 of the Act.  Her right in those circumstances would be, however, to complain of dismissal on the "notified day of return" under S.56, and under Schedule 2 to the Act, S.57 would have applied with modifications.

	The right for a woman to make a complaint under S.56 is, however, stated to exist where she "has exercised her right to return in accordance with S.47".  Under that section she is required to give notice to her employer at least 21 days before the "notified day of return", and by S.45 that return is (subject to immaterial exceptions) to be within 29 weeks beginning with the week in which the date of confinement falls.

	Mrs Tambling had, by her letter of 17th January, given at most 10 days' notice of her proposed return.  Accordingly that letter did not constitute notice given in accordance with S.47, and her right to return was, by S.45, subject to the provisions of S.47.  She therefore had no right under the Act to return to work, and her right to complain of unfair dismissal under S.56 (and S.57 as applied by the Second Schedule to the Act) could not arise.

	It follows that Mrs Tambling's application to the Industrial Tribunal fell to be dismissed because she was asserting her right to return and had (by 22nd January 1992) not succeeded in doing so in accordance with the statutory provisions.  Mr Chaplin pointed out that Mrs Tambling could have put matters right: on 22nd January 1992 there remained ample time to serve notice complying with S.47.  She had considered whether to do so, being advised by Mr Chaplin, but had decided not to take that course but instead to complain of unfair dismissal alleged to have taken place on 22nd January 1992.

	We carefully considered the decision in Lavery v. Plessey, to which we have referred above.  We were unable to distinguish that case in any material respect.  Our unanimous judgment therefore is that no arguable point of law is disclosed by this appeal and, in accordance with this Tribunal's special procedure, the appeal must be dismissed.

	We are all of the opinion that the "legislative jungle" to which the Employment Appeal Tribunal referred in Lavery represents a trap for a woman in circumstances such as those shown by the present case.  Once she has served a defective notice purporting to exercise her statutory right to return to work, she has made an election inconsistent with any right to seek compensation for unfair dismissal if the employer dismisses her.  If enough time remains, she can of course put matters right by serving a proper notice, insisting upon her rights under S.56 if she is not allowed to return to work: but if the time for service has passed she will have no remedy.