Although many cases of maternity discrimination may be fairly clear cut, the picture can be more complex when issues of discrimination arise in relation to maternity related illness, particularly when it occurs after the 'protected period'. Alastair Currie looks at a case which clarifies the correct approach to take when an employee is dismissed because of post-natal depression which occurs after maternity leave has ended – and provides a useful summary of this somewhat complex area.

The background

There are two types of potential discrimination which might apply.

  1. Under the Equality Act 2010 (EqA 2010), pregnancy discrimination occurs where an employer treats an employee unfavourably because of her pregnancy or because of an illness she has suffered as a result of her pregnancy during the "protected period". The protected period runs from the beginning of pregnancy to the end of maternity leave (section 18(2)).  This is an additional protection afforded to female employees who are pregnant / on maternity leave, in addition to 'standard' sex discrimination protection.
  2. Direct sex discrimination occurs where, because of sex, an employer treats an employee less favourably than it treats or would treat others (section 13(1), EqA 2010). An employee claiming direct sex discrimination will need to show that they have been treated less favourably than a real or hypothetical comparator; that is, a member of the opposite sex whose circumstances are not materially different to theirs. This type of discrimination applies to all employees, regardless of whether they are pregnant or are on maternity leave.

These provisions implement the Equal Treatment Directive (2006/54/EC) ('the Directive'), which concerns sex discrimination in employment. In a case called Brown v Rentokil Ltd ('Brown'), the European Court of Justice (ECJ) held that, where illnesses caused by pregnancy or childbirth arise after the end of maternity leave, they do not afford an employee the special pregnancy  discrimination protection under the Directive (type 1 above).  So, where an employee is dismissed because of pregnancy-related absence after maternity leave, the employee will be out of the 'protected period' - so sex discrimination will only arise if the employer treats the employee less favourably than it would have treated a sick man in similar circumstances (type 2 above).

These were considered in the recent case of Lyons v DWP Jobcentre Plus

The facts

Miss Lyons worked as a 'lone parent advisor' for Jobcentre Plus from 1999 to 2010. During that time she had various periods of sickness absence owing to depression. She became pregnant in 2009 and started her maternity leave on 1 February 2010. She informed her employer that she would return to work on 17 September.
Following the birth of her child on 17 February 2010, Miss Lyons suffered feelings of tiredness, anxiety, distress and helplessness. In July, her GP diagnosed her as suffering from "moderately severe post-natal depression". Since she was still feeling ill in September, the GP signed her off and she began a period of sick leave. She did not return to work, and was dismissed by reason of capability in March 2011. She brought pregnancy discrimination, direct sex discrimination and unfair dismissal claims before an employment tribunal.

The tribunal upheld her unfair dismissal claim on the basis that the employer had failed properly to follow its absence management procedures. However, it rejected her discrimination claims for the following reasons.

  • Pregnancy discrimination. In dismissing Miss Lyons because of her absence for post-natal depression, the employer treated her unfavourably because of a pregnancy-related illness. However, this unfavourable treatment did not amount to unlawful pregnancy discrimination under section 18 of the EqA 2010 because it took place after her pregnancy and maternity leave had finished.
  • Direct sex discrimination. The fact that Miss Lyons' pregnancy-related illness began during maternity leave did not mean that her dismissal necessarily amounted to direct sex discrimination. The tribunal noted that, whilst in a previous case called Caledonia Bureau Investment and Property v Caffrey, ('Caffrey') the Employment Appeal Tribunal (EAT) had held that a capability dismissal after the end of the employee's maternity leave amounted to "classic sex discrimination";  Caffrey was heard before the ECJ's decision in Brown. The tribunal felt that it was unlikely that the EAT would have reached the same decision with the benefit of the Brown decision. In fact, in light of Brown, the EAT's decision in Caffrey was wrong.

Miss Lyons appealed to the EAT.

The decision

The EAT rejected Miss Lyons' appeal and upheld the tribunal's original decision.

No pregnancy discrimination as treatment outside of protected period

In the EAT's view, the tribunal was right to find that there was no pregnancy discrimination under section 18 of the EqA 2010. Under section 18(2)(b), a woman is only discriminated against because of pregnancy if, because of an illness suffered as a result of her pregnancy, she is treated unfavourably during the protected period. Miss Lyons' dismissal occurred some months after her maternity leave ended.

No direct sex discrimination in the absence of an actual or hypothetical male comparator

The ECJ's decision in Brown suggested that, where a pregnancy-related illness arises during maternity leave and persists after the maternity leave period, an employer is not prevented from taking absence after the end of maternity leave into account when considering dismissal. However, to avoid sex discrimination, it must treat the woman the same way that it treats a man who has been off sick for the same amount of time. Given the decision in Brown, the tribunal was right to find that the EAT's decision in Caffrey was incorrect. As Miss Lyons did not argue that she had been treated less favourably than a male comparator, she lost on this point.

What does this mean for me?

The EAT's decision  confirms that dismissals outside of the 'protected period' do not attract the special pregnancy discrimination  protection under section 18 of the EqA 2010, regardless of the fact that the absence may have originated during maternity leave.  Also, as with adverse treatment related to other gender-specific absences (concerning, for example, hysterectomy operations or breast cancer), an employee such as Miss Lyons will not succeed with a direct sex discrimination claim unless she can show that she has been treated less favourably than an appropriate male comparator. 

This area of law can become quite complex, so you may want to refer the summary guide below.

Employee's circumstances Within Protected Period (PP)? (Pregnancy discrimination applies; no comparator needed)
Outside Protected Period? (Direct Sex discrimination applies; need comparator) Comment
Employee pregnant Yes Yes The PP begins the moment that the employee becomes pregnant
Employee on maternity leave Yes Yes The PP covers the entirety of the employee's maternity leave
Employee returns to work No Yes The PP is now finished, except in exceptional circumstances*

* where a decision was made during the protected period, but acted upon after the period had come to an end. An example of this would be where an employer decides to make a woman redundant because of her pregnancy but does not communicate the decision to make her redundant until after she returns to work following maternity leave.

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