Appeal No. EAT/466/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 2 February 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR K M HACK JP

	MISS A MADDOCKS OBE

PHILIP HODGES & CO	APPELLANTS

MRS K M KELL	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR RICHARD CLAYTON
	(OF COUNSEL)
Messrs Philip Hodges & Co
6 Coldbath Square
London EC1R 5HL

For the Respondent	MR P BIBBY
	(OF COUNSEL)
Free Representative Unit
49-51 Bedford Row
London WC1R 4LR

	MR JUSTICE MUMMERY (PRESIDENT):  This is an Appeal against a decision of the Industrial Tribunal sitting at London (South) on 26 March 1993.

	For the reasons notified to the parties on 7 May 1993, the Tribunal unanimously decided that Mrs Kell was unfairly dismissed by Philip Hodges & Co in the following circumstances.  Mrs Kell began employment on 13 August 1984 as a legal secretary with Philip Hodges & Co, a firm of solicitors.  On 24 May 1991 Mrs Kell gave 21 days' notice under Section 33 of the 1978 Act that she would take maternity on 14 June 1991 and that her baby was due on 3 September 1991.  She stopped working and went on maternity leave on 7 June.  Her baby was born on 4 September.  In December 1991, Philip Hodges & Co engaged a Mrs McGrath as a full-time legal secretary.  She had previously worked part-time.

	On 5 February 1992, Mrs Kell notified her employers in writing under Section 47(1) of the 1978 Act that she intended to return to work on 2 March 1992.  On 13 February her employers informed her that she was redundant.  2 March 1992, the date notified by Mrs Kell of her return to work under Section 47(1), is the date on which she is treated as dismissed, in accordance with Section 56 of the 1978 Act.

	In those circumstances Mrs Kell presented a complaint to the Industrial Tribunal on 28 May 1992.  She complained that her maternity rights had been infringed, that she had been unfairly dismissed and unfairly selected for redundancy.  She also made a complaint of sex discrimination.  

	She set out in her complaint the facts which I have stated, with some further details not relevant for the purposes of this appeal.  

	By a notice of appearance dated 14 August 1992 the employers disputed that Mrs Kell had been dismissed.  They submitted that she had terminated her contract so that she could leave to have a baby and that, during her absence, her post was abolished, so that she became redundant.  That broad submission was amplified later in the appearance.  It was stated that Mrs Kell's contract contained no provision entitling her to maternity leave and that she had no contract after she stopped working to have the baby.  She could only rely on the statutory provisions.  When she applied to return to work at the end of statutory maternity leave.  They were unable to accept her back, as her post as secretary to Mr Hodges no longer existed.  There were no other suitable posts within the firm which could be offered to her.  It was contended that she had been Mr Hodges' secretary since she joined the firm.  She had not been replaced, as Mr Hodges had not had a secretary since she left in June 1991.  He did not now have a secretary.  She was redundant.  One was paid the proper redundancy payment.  Unfair dismissal and unfair selection for redundancy were denied, as was sex discrimination.

	The Tribunal found in favour of Mrs Kell.  They found as a fact that Mrs Kell had not been employed purely as Mr Hodges' secretary.  They found that she was employed as a legal secretary.  The Tribunal referred to the dates of the notices and referred to the financial difficulties in which the employers found themselves as a result of an important client going into administrative receivership in May 1991.  This had had an effect on the work of the firm, which declined.  The need for a personal secretary for Mr Hodges declined.

	In the rest of the decision there are two important paragraphs which I should read in full.  Paragraph 6 said:

	"[Mrs Kell] left on the 7 June and a second full-time secretary, a Miss M S. Wright, left shortly after."

	As we understand the facts, those two people left at a time when there were three full-time secretarial staff and one part-time.  The paragraph goes on:

	"The work of the firm at that time could and was covered by one full-time and one part-time secretary."

	That was the position after the departure of Mrs Kell on maternity leave and of Miss Wright's voluntary departure.  

	"However, the Respondent did not make the Applicant redundant at that point.  At the end of August, the Respondent moved to new offices at Coldbath Square in London and at that point decided that the secretarial staff was insufficient.  The firm contacted a Mrs McGrath who had worked for one of the partners full-time for some four years, but who had resigned in November 1989.  From time to time, she had done temporary work and the Respondent re-engaged her on an ad hoc basis in September 1991.  When she began on that temporary basis, she was working over 20 hours but less than 35 hours per week.  Then sometime between December 1991 and January 1992, the Respondent made Mrs McGrath a full-time permanent employee.  The work which Mrs McGrath did was mainly litigation and commercial work, although she did some 4 to 5 letters for Mr Hodges a day."

	After referring to the submissions, the statutory provisions and to authorities, the Tribunal said in paragraph 10:

	"Having found that the Applicant was employed as a legal secretary and not as the personal secretary of Mr Hodges, the Tribunal also found that the Applicant was not dismissed by reason of redundancy.  The Respondent firm appears to have had no regard to its statutory obligations.  These make it quite clear that a woman with the requisite service who complies with the requirements of Section 33 has a right to return to work after her maternity leave.  However, the Act does acknowledge that circumstances change and that a job can become redundant in the meantime.  Section 45(3) of the Employment Protection (Consolidation) Act 1978 provides that where it is not practicable for a woman who has been on maternity leave to return to her job by reason of redundancy, she is entitled where there is a suitable vacancy to be offered alternative employment with her employer or his successor-in-title or an associated employer under a new contract of employment.  The problem in this case was that there was no alternative vacancy because the employer without regard to its obligations under the statute engaged another full-time employee on what would have been a suitable vacancy for the Applicant some six weeks at most before she was due to return.  The Tribunal finds that the Respondent did not do this deliberately as a means of avoiding the Act, but in appointing Mrs McGrath as a full-time employee, failed to have regard to its obligations to the Applicant under the maternity provisions of the 1978 Act.  The Tribunal therefore finds that when the Respondent failed to give the Applicant her job back or to offer her suitable alternative employment, they unlawfully dismissed her.  The Tribunal does not accept that the Applicant was dismissed by reason of redundancy.  The Tribunal believes that to hold otherwise would be to make a nonsense of the maternity provisions of the 1978 Act.  All that a Respondent would need to do to avoid complying with the provision for the right to return would be to fill any alternative vacancy with a full-time permanent employee and then inform the Applicant that she was redundant because no such vacancy existed."

	For those reasons the Tribunal found in favour of Mrs Kell.  They did not feel that it was necessary to make any further findings as regards unfair dismissal under Section 60 of the Act or unlawful sex discrimination contrary to the 1975 Act.

	Philip Hodges & Co were dissatisfied with the decision and gave notice of appeal dated 11 June 1993.  We have been provided with a well-structured skeleton argument by Mr Clayton, who appeared for Philip Hodges & Co.  He made submissions on the basis of the skeleton argument and in amplification of it.  He stated that the issue on this appeal was whether Mrs Kell was unfairly dismissed in circumstances where she was entitled to return to work following statutory maternity leave, where a full-time employee had been engaged six weeks before she notified her employers of her return to work and where there was no suitable alternative employment available to her.

	He submitted that there was an error of law in the Tribunal's decision, particularly in relation to the construction of the combined effect of Sections 33, 45, 47 and 56 of the 1978 Act.  

	The way in which Mr Clayton put the case was this:  that Mrs Kell was entitled to return to work provided that she served two notices.  First, a notice in accordance with Section 33(3) and, secondly, a notice in accordance with Section 47(1).  Until Mrs Kell gave notice in strict accordance with Section 47(1) he submitted that she had no statutory right to return to work and no right to complain of unfair dismissal under Section 56.  In support of that proposition he referred to two cases.  The decision of this Tribunal in Lavery v Plessey Telecommunications [1982] ICR 180 at page 377B to G and to another decision of this Tribunal in the Institute of Motor Industry v Harvey [1992] IRLR 343, in particular, pages 347 and 348.  He submitted that in accordance with Section 56, the employer's refusal to allow Mrs Kell to return to work on 2 March 1992 did constitute a dismissal for the purposes of the Act.  She was prima facie entitled to be reinstated under Section 45(1) on that date.  But, if the reinstatement was not reasonably practicable on that date, the employers were only obliged to make Mrs Kell an offer of suitable alternative employment under Section 45(3), if there was a vacancy available at the date of the service of the Section 47(1) notice.  If no such vacancy was available, then Mrs Kell's entitlement was to redundancy payment.

	On the facts found by the Tribunal no such vacancy was available at that date because Mrs McGrath had been appointed to the position.  Mr Clayton elaborated these submissions in the context of his overall submission that, until a notice was served by Mrs Kell under Section 47(1) of the Act, no statutory right to return to work existed or had arisen or had crystallized.  Against the background of that important submission, he said that there was no statutory bar in the relevant provisions of the Act prohibiting the employers from employing a full-time employee prior to the time when Mrs Kell became entitled to serve a Section 47 notice.  There was no statutory obligation on the employers to employ a temporary employee only, when Mrs Kell took statutory maternity leave.  When she proposed to return to work the employers were facing a redundancy situation.  The requirements for full-time secretaries had diminished or were expected to diminish.  There was no suitable alternative employment to offer to her.  In those circumstances, Mr Clayton concluded by submitting that the Tribunal had erred in law by misconstruing or misapplying the relevant provisions of the 1978 Act.

	For Mrs Kell Mr Bibby made two submissions.  The first was on the basis of the finding of fact by the Tribunal that, at the time of Mrs Kell's dismissal, there was no redundancy.  He submitted that by virtue of Section 33(1) of the 1978 Act, Mrs Kell had a right to return to work.  The work that she had a right to return to was that of a legal secretary.  She exercised that right in accordance with Section 47.  Her employers did not permit her to return to work.  By Section 56 she was to be treated as if she had been dismissed for the reason for which she was not permitted to return to work.

	The employers asserted that the reason was redundancy.  But the Industrial Tribunal held that redundancy was not the reason for dismissal.  That was a finding of fact, which is not subject to reversal on this appeal.  The Tribunal also found as a fact that the employers had recently taken on the new full-time legal secretary, Mrs McGrath.  There was no diminution in the requirement for employees to carry out work of the particular kind that Mrs Kell did.  The Tribunal, in those circumstances, correctly found that redundancy was not the reason for dismissal.  The consequence was that the dismissal was unfair because the employers had failed to show that the reason for the dismissal was one of the potentially fair reasons in Section 57(2) of the Act.  

	The Industrial Tribunal was then required to have regard to Section 57(3).  The Tribunal correctly found that the dismissal was automatically unfair because the employers had failed to show that the reason for dismissal was one of the potentially fair reasons.

	Those submissions were all on the basis of a finding by the Tribunal of no redundancy.  

	The recent submission was based specifically on Section 45(3) of the Act.  That provides that, where a person has a right to return to work but becomes redundant, she is entitled to be offered a suitable available vacancy.  That operates where the employee has a right to return to work.  The entitlement is to be offered a suitable available vacancy.  It is not conditional on the employee having exercised the right to return to work by giving a notice under Section 47(1).  If Mrs Kell became redundant some time before her dismissal, then the suitable full-time job subsequently offered to Mrs McGrath during the period of her right to return to work was a suitable available vacancy.  She has not been offered that job and, therefore, by virtue of Schedule 2, a dismissal by failure to offer her a suitable available vacancy was automatically unfair.

	We have set those submissions out in detail because the matter was carefully considered by the Tribunal and has been fully argued on both sides before us.  Our conclusion is that the Appeal should be dismissed because there was no error of law.

	It is not necessary for us to express a view on all the detailed submissions.  The matter, in our view, can be stated quite briefly in favour of Mrs Kell's arguments.  The position was this:  she gave notice under Section 33 before she left on maternity leave.  Under Section 33 an employee shall be entitled to return to work if the procedure laid down is followed.  The procedure laid down provides for the employee, who has become pregnant, to inform her employer in writing at least 21 days before her absence begins that she will be away from work because of pregnancy and that she intends to return to work with her employer.  Mrs Kell complied with all those requirements.  She was, at all times, entitled to return to work.  What does the right to return to work mean?  

	Section 45, Subsection 1 provides:  

	"The right [to return] to work of an employee who has been absent from work wholly or partly because of pregnancy or confinement is, subject to the following provisions of this Act, a right to return to work with her original employer, or, where appropriate, his successor, at any time before the end of the period of twenty-nine weeks beginning with the week in which the date of confinement falls, in the job in which she was employed under the original contract of employment and on terms and conditions not less favourable than those which would have been applicable to her if she had not been so absent."

	That mass of words means that there is a right for a person who is entitled to return to work to return to the job in which they were employed.  Section 45(3) brings us to another point.  That is a situation in which Parliament envisaged that it may not be practicable for a person to return to the very job in which they had been employed before going on maternity leave.  Section 45(3) provides:

	"If an employee is entitled to return to work in accordance with subsection (1), but it is not practicable by reason of redundancy for the employer to permit her so to return to work she shall be entitled, where there is a suitable available vacancy, to be offered alternative employment with her employer (or his successor), or an associated employer, under a new contract of employment complying with subsection (4)."

	The position is that Mrs Kell was entitled to return to work in accordance with subsection (1) of Section 45, because she had given notice under Section 33 and if, as the employers asserted, it was not practicable for her to return by reason of redundancy, Mrs Kell then acquired a substituted right.  The employers came under substituted obligation.  Her substituted right was that she should be entitled instead to be offered alternative employment with her employers where there was a suitable available vacancy.  There was a corresponding obligation on her employers to make such an offer to her as and when there was a suitable available vacancy after she had gone on maternity leave.

	What these employers did was to default in that obligation and therefore infringe her rights.  Instead of offering her the job that was available as a legal secretary in December 1991/January 1992, they appointed to fill that vacancy Mrs McGrath.  They then sought to say, when Mrs Kell sought to exercise her right to return to work under Section 47(1), that there was no job for her to do and that she was therefore redundant.

	In those circumstances she is entitled to invoke Section 56.  She was entitled to return to work.  She did exercise her right to return in accordance with Section 47.  She was not permitted to return to work.  She was, therefore, entitled to argue that she had been dismissed with effect from the day which she notified as the day of return to work for the reason that she was not permitted to return.

	The principal way in which Mr Clayton sought to overcome these provisions is not, in our view, convincing.  He submitted that it is made clear in Section 33 and Section 45 that the right of the employee to return to work is:

	"Subject to the following provisions of this Act."

	That appears in Section 33(1).  It also appears in Section 45(1).  He therefore submits that the service of the notice under Section 33 does not give the person serving the notice an absolute right to return to work.  He describes it as a contingent right - a right which does not exist or arise in its full form until a notice is served under Section 47(1).  So, he says, that there can be no reliance in this case on Section 45(3), because Mrs Kell was not entitled to return to work at the date when the vacancy filled by Mrs McGrath arose.  She was only entitled to return to work, on his argument, after she had served the notice under Section 47(1).  The vacancy appears to have arisen in December 1991/January 1992.  The notice under Section 47(1) was not given by Mrs Kell until 5 February.

	In our view, this argument is fallacious.  It is clear on analysis of the interaction of these sections that a distinction is drawn between the existence and the exercise of a statutory right to return to work.  The statutory right exists by virtue of compliance with Section 33(3), the service of the notice.  Section 47(1) only comes into play as machinery for the exercise of the right.  The wording of Section 47(1) predicates the existence of the right, which is being exercised.  Section 47(1) provides:

	"An employee shall exercise her right to return to work by [giving written notice to] the employer, (who may be her original employer or a successor of that employer) at least [twenty-one] days before the day on which she proposes to return of her proposal to return on that day (in this section referred to as the 'notified day of return')."

	The wording of that section presupposes that the right exercised by the giving of notice exists at the time when the notice is given.  The question then arises, when did it come into existence?  It came into existence when the notice was given, before Mrs Kell left employment to go on maternity leave.  It was only exercised at the later date.  The crucial point is that, on that analysis, Mrs Kell was entitled to return to work within the meaning of Section 45(3) at the time when the employers say that it was not practicable for her to be permitted to return to work by reason of redundancy.

	We therefore reject the main argument on which Mr Clayton relies on behalf of the employers.  That is sufficient to dismiss this appeal on the grounds that there is no error of law by the Tribunal.  

	The appeal is, accordingly, dismissed.