Maternity: ill health and return to work following maternity leave

Crees v Royal London Insurance [1997] IRLR 85 EAT
Kwik Save Stores Ltd v Greaves [1997] IRLR 268
Lewis Woolf Griptight Ltd v Corfield EAT 1073/96 (unreported)10 April 1997
McPherson v Drumpark House [1997] IRLR 277 EAT (Scotland)

It is a sad fact that many women suffer from ill health following child birth. So why is the law so unclear, muddled and confused on a woman's rights to return to work if, at the end of her maternity leave, she is too unwell to return?

In the last few months there have been at least three reported cases on the subject in the Employment Appeal Tribunal, two of which will go before the Court of Appeal. The Maternity Alliance Help Line receives on average four calls a week from women wishing to return to work after maternity leave but are too ill to do so. Nonetheless the law remains muddled.

Here, we try to distil the current state of the case law and recommend how best to preserve employee's rights when problems arise. There are three main sources of rights for women returning from maternity leave: statutory, contractual and the right not to suffer from sex discrimination.

Statutory rights

All women, regardless of length of service are now entitled to 14 weeks maternity leave and, during that time, their contracts remain in force in all respects, other than remuneration. They must comply with the notification procedure set out in the Employment Rights Act in order to gain the rights. The statutory right does not allow any extension of the 14 weeks in the event of ill health preventing a return to work.

Women with the necessary length of service (two years service as at 11 weeks before the baby's due date) have the right to return to work at any time up to 29 weeks after the actual birth of their child. Again proper notice must be given, including giving notice of the proposed date of return, at least 21 days beforehand. If ill health prevents a return to work on the notified date of return, the return date can be extended by up to four weeks if a medical certificate is delivered before the date notified.

And if a woman is still ill? Here the position becomes much more complex as it begs the question of what 'exercising the right to return to work' actually means. Under the statute, Section 82 of the Employment Rights Act 1996 states that exercising the right to return is done by giving the requisite notice. But case law, since Kelly v Liverpool Maritime Terminals Ltd (Court of Appeal 1988 IRLR 310) has added an extra requirement of physical return to work as well.

In the cases of Crees and Lewis Woolf, both Mrs Crees and Mrs Corfield sent in sick notes which the EAT said did not amount to the exercise of the return to work. In Mrs Greaves' case, she physically attended at work in order to hand in her sick note and then went home. Again the EAT did not consider this to be enough to have exercised the right to return. Without having exercised the right to return, the right is lost and so too is the right to claim unfair dismissal under the statutory rights.

The analysis of the current case law raises more problems than it solves. For how long is a returning woman required to attend at work in order to have validly exercised her return? What if the perfectly fit new mother is injured in a road traffic accident on the way to her first day back at work? Does this comply with the Pregnant Workers Directive which prohibits placing women in a worse position than would have been the case had they not recently given birth? However until these issues are resolved in the Court of Appeal in the two cases of Crees and Greaves, the statutory requirements are being strictly construed. To minimise difficulties, it is best not to inform your employer too far in advance of your intended date of return (provided always that the minimum 21 days notice is given).

Contractual rights

If the statutory right to return is lost - either by failure to give proper notification or the failure to physically return on the notified return date of the four week extension, this does not mean that the contract automatically terminates. The woman's contract may still be in existence. If the employer fails to allow her to return on her recovery to full health, or dismisses her beforehand, she will still be able to bring a claim for unfair dismissal, provided the contract is still in existence.

To establish that the contract is still alive first look at the terms of the contract itself: if that is silent or of no help, examine closely all the facts of the case. Is there anything in the behaviour of the employer or the employee which shows the contract is still alive? Does the woman receive invitations to the staff party, contractual maternity pay, internal staff memos, retain the use of a company car? Is she still listed on the internal telephone list? What has been said in speech or in writing about her continued absence? Look for evidence to construe the contract as continuing.

The delivery of a sick note alone will not necessarily mean the contract continues. Nor will the payment of SMP alone show the contract is in existence, since SMP is a statutory requirement.

It is advisable for women who are unable to physically return following the end of their maternity leave to write when they send their sick notes. The letter should state that they remain an employee and will be absent from work through sickness. If the woman is entitled to statutory maternity pay she should say in the letter that she is claiming this as an employee. If the employer does not then contradict the woman's assertion, it will be evidence of the contract remaining in existence.

If a contract is in existence, so too will the rights to claim unfair dismissal if the woman is dismissed.

Sex discrimination

Even where a woman has lost her statutory and contractual right to return there may still be a claim for sex discrimination depending on the circumstances. It may be possible to argue that a pregnancy related dismissal will be sex discrimination, without needing to find a male comparator. Much will depend upon the outcome of Brown v Rentokil in the European Court of Justice. Pregnancy related dismissal will be looked at in greater detail in a future issue of LELR when we will report the very recent ECJ judgment of Larsson v Dansk Handel.

It might also be possible to show that the woman is treated less favourably than the employer treats, or would treat, a male comparator. Check to see how long comparable men are entitled to by way of sick leave and whether a comparable man would have been dismissed for illness. In Mrs Corfield's case the EAT found that she had been dismissed in circumstances where a man would not have been dismissed. The relationship between Mrs Corfield and her employer had broken down. Because Mrs Corfield no longer had a statutory right to return to work, the employer used this as an excuse for terminating her employment. That excuse would not have been open to an employer in the case of a male comparator. So, since a man would not have been dismissed in similar circumstances, therefore Mrs Corfield had been less favourably treated on grounds of her sex.