In test cases brought by MSF and USDAW, the Court of Appeal has delivered a landmark Judgement that will protect the rights of working mothers. They have upheld a woman's right not to be unfairly dismissed if she is unable to physically return to work following the end of her maternity leave period, provided she has sufficient continuous service to have a right to return to work (two years at 11 weeks before the expected week of birth) and has complied with the notification requirements.

The judgement could potentially benefit 25,000 women a year, on the basis of the Government's statistics of the number of women who give ill health as the reason for failing to return to work after maternity leave. (DSS Research Report number 67, MATERNITY RIGHTS AND BENEFITS IN BRITAIN 1996).

Women who are ill during maternity leave will be able to exercise their right to return to work and take up any contractual benefits, such as sick pay to which employees would be entitled. Women will need to decide if they would prefer to remain on maternity leave or exercise the right to return to work.

Mrs Crees and Mrs Greaves had protection against unfair dismissal because of their length of service. Mrs Greaves had worked for Kwik Save for over 16 years and Mrs Crees had worked for Royal London Insurance for over three years when they commenced maternity leave.

They had therefore acquired the right to 29 weeks absence from work after the birth of their babies as well as the 14 week general maternity leave period available to all women, regardless of length of service. Both women had complied with all their contractual and statutory obligations to notify the employer of their intention to take maternity leave and return to work after the birth of their children.

Both women had given the employer their intended date of return under what is now Section 82 of the Employment Rights Act 1996 (ERA). Both women were then certified sick by their doctors on the date they had given as their notified date of return to work ending their maternity leave and exercising their right to return.

Under the statute there is an entitlement to a four week postponement of the return to work if a woman is unwell and gives her employer a doctor's certificate before the notified date of return.

Although Mrs Greaves had not complied to the letter with this Sub Section (now Sub Section 4 of Section 82) she was treated as having exercised the right to obtain the postponement.

Mrs Crees complied completely with the postponement entitlement. When both women remained too unwell to return to work following the four week extension, Mrs Crees was told that she had forfeited her right to return to work and that her contract of employment had terminated with immediate effect. She was denied the right to an appeal and when she brought a claim for unfair dismissal, the Industrial Tribunal held that there was no dismissal because she had not validly exercised her right to return to work and her rights had therefore been extinguished.

Mrs Greaves was not told immediately that she would not be permitted to return on her recovery to health, but two months later when she remained unwell, was told that her employment had already terminated as she had failed to exercise her right to return to work.

Both cases were lost in the Employment Appeal Tribunal. The issue before the Court of Appeal concerned the exercise of statutory rights to return, and did not consider in detail whether Mrs Crees' and Mrs Greaves' contracts subsisted during their extended maternity leave.

Essentially the appeal court had to decide whether a physical return to work was necessary in order for a woman to have validly exercised her statutory right to return to work, given to women who have given birth, subject to length of service. If the right had been exercised then both women would have been protected from unfair dismissal.
The Court of Appeal, drawing from the House of Lords Judgment in Brown v Stockton on Tees Borough Council [1989] AC noted that the purpose of the legislation is to provide 'special protection for the security of employment of pregnant women' and forms 'part of social legislation passed for the specific protection of women and to put them on an equal footing with men' (Lord Griffiths' Judgment in Brown v Stockton).

The Court of Appeal repeat and approve Lord Griffiths' Judgment: 'I have no doubt that it is often a considerable inconvenience for an employer to have to make the necessary arrangements to keep a woman's job open for her whilst she is absent from work in order to have a baby, but this is a price that has to be paid as part of the social and legal recognition of the equal status of women in the workplace'.

The Court of Appeal ruled that the language of the right to return to work and the unfair dismissal provisions should be construed in the context of the statutory purpose identified by the House of Lords, both as to the result to be achieved and the means by which it is to be achieved, subject to the women employees complying with the detail of the provisions on notification and information.

Applying that interpretation the legal position does not therefore require an actual physical return to work in order to exercise the legal right to return. An actual presence at work on the notified day of return is not necessary for the exercise of the right to be complete and effective.

Provided all the notification requirements have been complied with and the notified date of return given, nothing more is required to be done for the right to be exercised. It follows that both Mrs Crees and Mrs Greaves had a right to claim that they had been unfairly dismissed as they were not permitted by their employer to return to work.
The critical point, the Court of Appeal said, is that the process of exercising the right to return to work is complete before the notified day of return actually arrives: it is complete once the appropriate notices have been given before the notified day of return.

The Court of Appeal went on to say that the argument put forward by the employers produced 'results so absurd and unjust that it cannot have been a part of the scheme of protection for female employees to allow an employer to do what was done to both Mrs Crees and Mrs Greaves without incurring liability'. Employers cannot take advantage of the temporary illness of a female employee to deny her the statutory right to return to work and to deny her the right to claim that she had been unfairly dismissed in not being permitted to return to work.

The Court of Appeal did not feel bound by the decision in Kelly v Liverpool Maritime Terminals, [1988] IRLR 310 which concerned a woman who had not complied with the statutory notification requirements.

The case was won without relying on either the Pregnant Workers Directive or UK or European sex discrimination or equal pay legislation. Although the Pregnant Workers Directive was argued, the Court of Appeal did not rule on it, as they held there was protection under domestic law without needing to rely on European law.

The case is also a timely reminder that the maternity rights legislation must be construed in accordance with the principle of protection of women and to place them on an equal footing in the workforce as men.