Out-Law News 1 min. read

Not sex discrimination to dismiss employee for post-natal depression absence after maternity leave finished, says UK EAT

It was neither sex discrimination nor discrimination related to pregnancy or maternity leave to dismiss an employee for excessive absences due to post-natal depression that took place after her maternity leave had ended, the Employment Appeal Tribunal (EAT) has found.

Although it upheld an unfair dismissal claim by Miss Lyons, a former Jobcentre Plus adviser, the EAT said that her treatment was not discriminatory under the terms of the Equality Act. Section 18 of the Equality Act only applies to unfavourable treatment because of a pregnancy-related illness if it occurs between the beginning of the pregnancy and the end of maternity leave, it said.

"[Under the Equality Act], a woman is discriminated against on grounds of pregnancy and maternity if, because of an illness suffered as a result of her pregnancy, she is treated unfavourably during the protected period, as defined by [the legislation]," it said. "While [Miss Lyons] was found to have been treated unfavourably for a pregnancy-related illness, it is not in dispute that the relevant treatment took place only after the end of her period of maternity leave."

An alternative argument that Miss Lyons' treatment amounted to direct sex discrimination was also rejected as her employer was entitled to treat her in the same way as a male employee absent from work due to any other illness once her maternity leave was over, the EAT said. EU law allows member states to set a period of maternity leave during which a woman is protected against dismissal due to absence for pregnancy-related illnesses, it said.

"When a pregnancy-related illness arises during pregnancy or maternity leave and persists after the maternity leave period, an employer is permitted to take into account periods of absence due to that illness, after the end of maternity leave, in computing any period of absence justifying dismissal, in the same way that a man's absences for illness are taken into account," the EAT said.

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