Dismissal for pregnancy-related sickness absence 


It is unlawful pregnancy or maternity discrimination to treat a woman unfavourably because of a pregnancy-related illness during the “protected period” (section 18, EA 10). The protected period begins at the start of the pregnancy and ends at the end of maternity leave (section 18(6), EA 10). 


It is not pregnancy or maternity discrimination to dismiss a woman who has failed to return to work at the end of her maternity leave because of continuing sickness absence, even if the sickness is pregnancy or maternity-related. This is because the protected period ends at the end of the maternity leave (Lyons v DWP Job Centre Plus [2014] UKEAT 0348/13/1401). However, periods of pregnancy-related sickness absence that predate the maternity leave start date must not be counted when working out the woman’s sickness absence record. 


It is sex discrimination to dismiss a woman who fails to return to work at the end of her maternity leave because of pregnancy-related sickness absence if a comparable man (real or hypothetical) with the same sickness absence record would have been treated differently (Lyons v DWP Job Centre Plus [2014] UKEAT 0348/13/1401). (See Chapter 7, page 200). 


A woman who is dismissed because she fails to return to work due to post-natal depression may, in some cases, have a separate claim for disability discrimination (see Chapter 7). 


It is, in any event, automatically unfair to dismiss a woman for a reason relating to her pregnancy, childbirth or maternity, or relating to taking or refusing to take maternity leave (section 99, ERA 96). No service is needed for this kind of claim (see Chapter 10).