House of Lords Decision in Halfpenny -v- IGE Medical Systems Limited

The House of Lords has finally given its judgment in Halfpenny -v- IGE Medical Systems Limited, a case concerning the right to return to work from maternity leave in which CMS Cameron McKenna acted for the employer.

Mrs Halfpenny notified her employers of an intention to return to work after maternity leave. She became ill - suffering from post-natal depression. The employer advised her that she could defer her return for 4 weeks for medical reasons. After she had failed to return at the end of the 4 weeks they declined to take her back subsequently.

The case centred on exercise of the right to return to work. Was it sufficient only to give the notice, or did the employee need physically to turn up?

The House of Lords found that effectively to exercise a return to work the employee must give the notice and demonstrate that on the notified day of return she was acting in compliance with the contract of employment - ie by being physically present for work or, if not possible, absent from work for some reasons permitted by the contract. This could include sickness. The House of Lords dismissed Mrs Halfpenny's claims for wrongful dismissal and sexual discrimination. Her unfair dismissal claim is remitted to the employment tribunal to determine.

Whilst this case has been followed closely, the result may largely be a matter of academic interest as what Lord Browne-Wilkinson described as the "much criticised system of maternity rights" has now been replaced by the new system introduced by the Employment Relations Act 1999. Now there is no specific "right to return" after "ordinary" maternity leave as the employment contract is deemed to continue throughout this period. A woman needs simply to return to work at the end of the 18 week period without any further formalities. Only if she wishes to return before 18 weeks of leave has elapsed must she give at least 21 days notice in writing.

Although there can be formal notification requirements for returning after "additional" maternity leave the failure to return to work at the end of either period of leave does not lead to the automatic loss of the right to return to work. If an employee is unable to attend work at the end of her ordinary or additional maternity leave due to sickness, the normal contractual arrangements for sickness absence will apply. Therefore a woman is treated as if she had returned to work and is currently on sick leave. This means she should receive whatever sick pay she is entitled to, and should comply with the Employer's policy on notification of absence.

If you have any queries or require any advice on maternity issues please contact Anthony Fincham by e-mail at [email protected] or by telephone on +44 (0)20 7367 3000.