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Legal Corner: Dismissal after absence for post-natal depression not found to be discriminatory

28th Mar 2014

The Employment Appeal Tribunal (EAT) recently heard the case of Miss Lyons v DWP Jobcentre Plus (UKEAT/0348/13). Miss Lyons had been employed at the Jobcentre Plus since 1999. Since 2003 she had suffered from depression and between 2003 and 2006 had significant periods of time off work as a result. In 2009 Miss Lyons became pregnant. On December 31, 2009, when she was some seven months pregnant, she was a passenger in a car which was involved in a collision with a motorcycle that, sadly, led to the death of the motorcyclist. She was deeply shocked by this event and had some time off work as a result. Her maternity leave commenced on February 1, 2010; she had informed her employer that she intended to take six months ordinary maternity leave followed by six weeks of annual leave – she was due to return to work on September 17. Miss Lyons gave birth on February 17 and thereafter suffered from feelings of anxiety, distress and helplessness. She did not seek medical attention immediately as she hoped that the symptoms would pass, but finally sought medical assistance on July 8, when she was diagnosed with moderately severe post-natal depression. She saw her GP again on September 15, two days before she was due to return to work, as she was not feeling any better. Her medication was changed and she was signed off work until October 14.

From September 17, when she was due to return to work, her period of absence was classified as ‘sick leave’ and her employer’s attendance management procedures came into play. A number of meetings took place but Miss Lyons was still not fit for work and on March 1, 2011 she was dismissed on the basis that her absence could no longer be supported.

Her appeal against dismissal failed and therefore she brought a claim against her employer alleging that she had been unfairly dismissed and also that her dismissal amounted to direct sex discrimination and/or pregnancy related discrimination. The Employment Tribunal found that the Jobcentre Plus had not fully adhered to their own policies on absence management, and that therefore the dismissal was unfair although they found that compensation should be reduced by 50% to take account of the chance that Miss Lyons would have been dismissed even if the policies had been followed in full. They rejected Miss Lyons claim of discrimination, and she therefore appealed to the EAT.

Pregnancy and maternity discrimination under S.18 of the Equality Act 2010 covers a situation where someone is treated less favourably because of her pregnancy or because of illness suffered as a result of pregnancy. However, it only applies, in cases where an individual is entitled to maternity leave, from the beginning of the pregnancy until the end of the ‘additional’ maternity leave (up to 52 weeks) or when the individual returns to work (if this is earlier). This is known as the ‘protected period’. Here, Miss Lyons gave her employer formal notification of her intention to return to work on September 17, 2010 and did not give notice of an intention to return at a later date. Therefore, S.18 did not apply from that date onwards and therefore her absence and subsequent dismissal occurred outside the protected period. Her claim for pregnancy and maternity discrimination therefore failed.

Miss Lyons sought to argue that her dismissal amounted to direct sex discrimination, in that she was treated less favourably than a man would have been, as her absence was related to her pregnancy. However, the EAT decided, after considered case law from the European Court of Justice, that when a pregnancy-related illness arises during pregnancy or maternity leave and continues after the end of the maternity leave period, an employer is entitled to consider such absences in the same way that they would consider a man’s absence for illness, when considering dismissal for that reason. A woman would not receive any special consideration for the fact that her absence was pregnancy or maternity related outside of the maternity leave period. In this case, there was nothing to suggest that Miss Lyons had been treated less favourably than a man in similar circumstances would have been, and her appeal therefore failed.

Employers often find it difficult to deal with absences relating to maternity issues. Whilst this case is a clear example of the pitfalls of not adhering to your own procedures for absences, it provides clarity as to how those absences should be considered. Female employees also need to be aware of the protections they are given during their maternity leave but also the timeframes during which these protections are available.

Safia Tharoo, Barrister, 42 Bedford Row, London

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