Maternity rights - new developments

United Kingdom

Maternity returners

Sandy Henderson considers developments during an important year for maternity rights

The Court of Appeal's recent judgment in Halfpenny v IGE Medical Systems Limited and its earlier judgment in Kwik Save Stores Limited v Greaves has brought to further public attention the complexity of the law in this area. In giving judgment, Lord Justice Ward remarked that 'It is surely not too much to ask of the legislature that those who have to grapple with this topic should not have to have a wet towel around their heads as the single most important aid to the understanding of their rights.' Both appeals concerned a number of difficult questions, including when and how the employment terminates in the case of a pregnant employee who takes Extended Maternity Leave, exercises her right to return to work at a later time but is then prevented by post-natal depression or other illness from actually attending for work at the end of the period. Is she dismissed? Is she wrongfully dismissed? Is she unfairly dismissed? Is she automatic unfairly dismissed? Is there sex discrimination? Is it automatic sex discrimination? The Court of Appeal's decisions are discussed below.

Dismissal

It was decided in Kwik Save that the process of exercising the statutory right to return to work from Extended Maternity Leave is complete as soon as the appropriate notice of intention to return is given. Failure to attend work on the notified day of return then becomes a contractual matter, leading to disciplinary action if the absence is unauthorised and without good reason or to sick pay if the reason for absence is illness. This should be contrasted with the right to return from Maternity Leave, where no notice of return is required to be given if the employee wishes to return at the end of the 14-week period (and not earlier).

Wrongful dismissal

During the period of Extended Maternity Leave, many of the parties' obligations under the employment contract are suspended. They revive when the employee exercises her right to return, restoring her job on terms and conditions not less favourable than would have been applicable to her if she had not been on maternity leave. In Halfpenny, it was decided that, if an employee fails to give proper notice of return (i.e. she does not exercise her right to return effectively), her employment contract would automatically determine by implied agreement. If she is not permitted to return in accordance with her right, the employer's action would constitute a dismissal without notice, entitling the employee to damages for breach of contract.

Unfair dismissal

It is very likely that such a dismissal will be unfair, having regard to the reason for dismissal and the (lack of) procedure followed by the employer. Getting the law wrong, however understandable that may be, is not a fair reason for dismissal.

Automatic unfair dismissal

A dismissal is automatically unfair under section 99(1)(c) of the Employment Rights Act 1996 if the reason for dismissal is that the employee took or availed herself of the benefits of maternity leave. In Halfpenny, it was decided that 'maternity leave' meant only the 14-week period and not the longer 29-week Extended Maternity Leave Period. It was also decided that, as a matter of fact, this was not the reason for the employee's dismissal and so there was no automatic unfairness. This decision places in doubt the correctness of an earlier Employment Appeal Tribunal decision in Caledonia Bureau Investment & Property v Caffrey that automatic unfair dismissal (and sex discrimination) occurs when a woman is dismissed after her maternity leave has ended because of a pregnancy-related illness which started at some point during the Maternity Leave Period or the Extended Maternity Leave Period. Not only was the EAT wrong to interpret 'maternity leave period' as the 29-week Extended Maternity Leave Period, but it was also wrong to say that an illness is 'connected to pregnancy' just because it is connected to maternity. Section 99 makes a clear distinction between pregnancy and maternity.

Sex discrimination

In Kwik Save, the Court of Appeal decided that the contract of employment revived when notice of return was served in accordance with statute. In Halfpenny, this meant that Mrs Halfpenny was in employment when her employer decided not to allow her to return after the notified date of return. The employer allowed her to postpone her return for a 4 week period, under section 82 of the Employment Rights Act 1996. However, when she submitted a further medical certificate, the employer did not seek medical evidence as to the likelihood of her returning to work, and did not allow her paid sick leave after the notified date of return (although she had not exhausted her entitlement to sick pay under the company's sick pay policy). Mrs Halfpenny compared herself with a male employee who had been allowed paid sick leave of comparable length. This amounted to direct discrimination because she was treated less favourably than a man on the grounds of sex.

In another 1998 case, Coote v Granada Hospitality Limited, the European Court of Justice decided that a former employee who was victimised - by the employer's refusal to give a reference for her because she had previously brought a sex discrimination complaint - was entitled to protection under Article 6 of the Equal Treatment Directive even though her employment had ended and the Sex Discrimination Act 1975 did not offer protection for discriminatory acts taking place after the end of employment. In Halfpenny, the Court of Appeal did not find it necessary to decide the issue, but expressed sympathy with the view that the decision in Coote could be distinguished on its facts and that the Sex Discrimination Act 1975 did not extend to former employees.

Automatic sex discrimination

Sex discrimination is automatic, without any need for a male comparator, if a female employee receives unfavourable treatment on account of pregnancy or maternity. This special protection is only available during the protected period. There has been much uncertainty when the protected period starts and ends. In Brown v Rentokil Limited, the European Court of Justice decided that the principle of special protection against unfavourable treatment applied as much during pregnancy as it did during maternity. The protected period therefore starts with pregnancy.

However, it is still uncertain when it ends. In Halfpenny, it was argued for Mrs Halfpenny that it should last for as long as an employee was entitled to be absent from work (i.e. the 14 week Maternity Leave Period and the 29-week Extended Maternity Leave Period and any further period of maternity-related sickness absence). For the company, it was argued that it only covered the 14-week Maternity Leave Period. The Court of Appeal declined to rule on the issue, since it was not essential to its judgment. Leave to appeal to the House of Lords was granted and it remains to be seen whether our existing maternity laws have undergone their final U-turn before they are reformed under the Fairness at Work legislation.