Summary: Does dismissal for absence due to post-natal depression after maternity leave amount to sex and/or pregnancy discrimination?
No, says the EAT in Lyons v DWP Jobcentre Plus.
Facts: The employee took ordinary maternity leave of six months, with six weeks annual leave following this. However, during the employee’s maternity leave she was diagnosed with post-natal depression and did not return to work before her dismissal some months later. The employee did not seek to extend her maternity leave period, so she was treated as having returned to work at the end of ordinary maternity leave. The employee argued that her dismissal was either direct pregnancy or sex discrimination.
Both arguments were unsuccessful. The direct pregnancy discrimination claim failed as to be unlawful the discrimination needs to fall within the “protected period”. This period starts at the beginning of pregnancy and ends on a woman’s return to work from maternity leave. The dismissal took place some months after the end of the protected period, so the claim failed.
The direct sex discrimination claim failed as it is clear from European case law that an employer is entitled to take into account absence after the end of the period of maternity leave in a decision to dismiss. A dismissal after the end of maternity leave does not amount to sex discrimination just because the cause of the absence is related to childbirth or pregnancy.
Implications: The EAT’s decision confirms that periods of pregnancy-related illness outside the protected period do not attract special protection under the Equality Act 2010. As with adverse treatment related to other gender-specific absences (concerning, for example, hysterectomy operations or testicular cancer), an employee will not succeed with a sex discrimination claim unless they can show that they have been treated less favourably than an appropriate comparator of the opposite sex. I.e. it is not sex discrimination to dismiss for a maternity related absence after the end of maternity leave if a man with the same level of absence would have been treated in the same way.
However, it is worth noting that the employee’s illness was likely to constitute a disability and she may well have been able to succeed in a disability discrimination claim relating to her dismissal if the employer had failed to make reasonable adjustments.