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Pregnancy-related dismissal
[ch 5: page 65]Pregnancy can sometimes result in ill health and absence from work but dismissing a woman for a pregnancy-related illness or for any other reason relating to pregnancy or maternity during the protected period (see page 31) is pregnancy or maternity discrimination.
Where a pregnancy-related illness, for example, post-natal depression, continues after the maternity leave has ended (i.e. outside the “protected period”), protection against pregnancy or maternity discrimination falls away. Any dismissal will still be sex discrimination (section 11 EA 2010) if the employer would have treated a man with the same sick record differently (excluding absences due to pregnancy-related illness before going on maternity leave).
Ms Lyons, a worker at Barnsbury Jobcentre Plus who had suffered from depression for a number of years, was dismissed for periods of absence due to post-natal depression arising after her period of maternity leave ended (it was therefore outside the protected period).
The tribunal found that she had been unfairly dismissed. However, her discrimination claims failed so she appealed. The EAT agreed with the tribunal. Under section 18 of the Equality Act 2010, women are only protected from pregnancy or maternity discrimination during a “protected period”, which runs from the start of the pregnancy until the end of the woman’s maternity leave.
During this period, a woman can claim if she suffers unfavourable treatment because of her pregnancy or maternity. To succeed with her claim, she does not have to show that a man would have been treated differently. It is enough to show that the unfavourable treatment was due to her pregnancy or maternity.
Clearly, this dismissal was related to pregnancy or maternity. However, the claim for pregnancy or maternity discrimination failed because the claimant was dismissed because of sick leave taken after the maternity leave had ended.
Regarding a claim for sex discrimination, this could only succeed if her treatment was less favourable than that of a hypothetical man. Although her dismissal related to her gender (pregnancy-related sickness), the claim failed because her employer was able to demonstrate that it would have treated a man with the same amount of sickness absence in the same way.
Lyons v DWP Job Centre Plus [2014] UKEAT 0348/13/1401).