No Discrimination Where Employee Dismissed for Absence due to Post-Natal Depression

An employee dismissed after the end of her maternity leave following absence for post-natal depression had not been discriminated against on grounds of pregnancy or sex. 

In Lyons v DWP Jobcentre Plus, L worked for her employer between 1999 and 2010 and had various periods of sickness absence due to depression. She went on maternity leave in February 2010 and told her employer she would return to work on 17 September. Following the birth, L suffered post-natal depression. She did not return to work in September and was signed off sick until her dismissal in March 2011. L claimed pregnancy discrimination, direct sex discrimination and unfair dismissal.

L’s unfair dismissal claim was upheld but her discrimination claims were rejected and she appealed to the EAT. The EAT dismissed her appeal. The Tribunal had been correct to find that there was no discrimination on grounds of pregnancy or pregnancy-related illness. Such a claim could only succeed if the unfavourable treatment complained of, in this case the dismissal, occurred during the protected period i.e. whilst she was pregnant or whilst she was on maternity leave. Since she was dismissed some months after the end of her maternity leave, the claim failed. 

L’s sex discrimination also failed. Where pregnancy-related sickness arises during maternity leave and continues after the end of maternity leave, an employer is not prevented from taking absence after the end of maternity leave into account when deciding whether to dismiss. Provided the employer would treat a man who has been off sick for the same amount of time in the same way, there will be no discrimination.

This case is a useful reminder of the limits of the protection afforded to employees off sick as a result of a pregnancy-related sickness. Once the protected period has expired, the woman has no special protection, even though the sickness originated in the pregnancy. An employer can take account of absence due to a pregnancy-related illness after the end of maternity leave when computing any period of absence justifying dismissal, in the same way that a man's absences for illness are taken into account.