EMPLOYMENT Maternity rights - applicant unable to resume work on due date owing to illness - refusal to allow return at later date not necessarily unfairHalfpenny v IGE Medical Systems Ltd: HL (Lord Hope of Craighead, Lord Mackay of Clashfern, Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Clyde): 14 December 2000The applicant gave notice under section 42(1) of the Employment Protection (Consolidation) Act 1978 of her intention to return to work after maternity leave but, suffering from postnatal depression, obtained a four-week extension under section 42(3).

She thereafter sought a further postponement of her return but the employers refused and when she failed to attend work on the date set under the section 42(3) extension they notified her that she would not be allowed back.The applicant brought proceedings claiming, among other things, unfair dismissal.

The industrial tribunal dismissed the claim.

The Employment Appeal Tribunal [1997] ICR 1007 upheld that decision.

The Court of Appeal [1999] Gazette, 3 February, 36; [1999] ICR 834 allowed the applicant's appeal.

The employers appealed.Elizabeth Slade QC and Paul Nicholls (instructed by CMS Cameron McKenna) for the employers.

Laura Cox QC and Tess Gill (instructed by Solicitor, Equalcontinued on page 40continued from page 39Opportunities Commission) for the applicant.Held, allowing the appeal, that an employee who had given notice under section 42(1) but was unable to be present on the due date of return had nevertheless returned to work if she had acted in a way consistent with the due performance by her of her revived contract of employment; that since the applicant had demonstrated an intention to return to work on the due date as far as her health permitted, and her absence on health grounds was within her contractual rights, she had acted in compliance with the terms of her contract; but that, since the employer's refusal to allow the applicant to return had been based on the mistaken belief that her non-attendance on the due date was in law to a failure to return and dismissal for a mistake of law was not necessarily unfair, the case would be remitted to the employment tribunal to decide whether the applicant's dismissal had been unfair.