The Equality Act prohibits pregnancy and maternity discrimination during the protected period (which lasts from the start of the pregnancy until either the end of the maternity leave or the woman returns to work), but what happens when the leave ends? The Employment Appeal Tribunal (EAT) held in Lyons v DWP JobCentrePlus that employers are entitled to take into account any absence after the end of her leave and compare the woman’s position with that of a man on sick leave.
Ms Lyons, who had worked for JobCentre Plus since 1999, had a number of periods off work for depression between 2003 and 2006. In January 2010, she was off work again for a couple of weeks after she was involved as a passenger in a road accident which resulted in the death of a motorcyclist.
She went on maternity leave on 1 February 2010 and was due to return to work on 17 September. After her baby was born, she suffered feelings of tiredness and anxiety, which continued for several months. She went to see her GP on 8 July and was diagnosed as suffering from moderately severe post-natal depression.
When she went back to see her GP on 15 September, she reported “intrusive thoughts” about the car accident and anxiety about her baby. The doctor gave her a medical certificate saying she was unfit to work until 14 October. She remained on sick leave until her dismissal on 1 March 2011.
She claimed unfair dismissal and discrimination on the ground of pregnancy/maternity. She also claimed direct sex discrimination, on the basis that she was dismissed for a pregnancy or maternity-related illness which started during the “protected period” (this begins at the start of the pregnancy and ends at the end of additional maternity leave or, if earlier, when the woman returns to work after the pregnancy) and continued until her dismissal.
The tribunal found the dismissal was unfair as Ms Lyons’ manager had failed to follow the correct procedures and had been “insensitive, unsupportive and oppressive” towards her. Nor had she adequately investigated Ms Lyons’ medical condition.
It dismissed her claim of discrimination on the ground of pregnancy and maternity. Even though the pregnancy related illness was during the protected period and continued after it, it did not amount to pregnancy and maternity discrimination under the Equality Act as the unfavourable treatment took place after the end of her maternity leave.
Nor was there any direct sex discrimination. European case law established that sickness absences after maternity leave could be taken into account when determining whether or not there was less favourable treatment on grounds of sex. In that case her position could be compared with that of a man. However, she had not argued her case on the basis that she was treated less favourably than a comparator on grounds of her sex. Her claim on this ground therefore failed.
The EAT agreed with the tribunal. Although Ms Lyons relied on an EAT case Caledonia Bureau Investment Property v Caffrey, (a case which had upheld a finding of sex discrimination when she was dismissed following illness related to pregnancy) the EAT considered that case was heard before the European cases and could not stand.
Ms Lyons’ claim of sex discrimination also failed as it was clear from case law that “if as a result of the childbirth or the earlier pregnancy the woman suffers an illness which extends beyond the period of the maternity leave then the employer is entitled to take into account the absence after maternity leave and compare that period with any period of sickness of a man.”