Dismissal for pregnancy-related sickness absence 




It is against the law (pregnancy or maternity discrimination) to treat a woman unfavourably because of a pregnancy-related illness during the “protected period” (section 18, EA 10). For employees, the protected period begins at the start of the pregnancy and ends at the end of maternity leave (section 18(6), EA 10). For anyone not entitled to maternity leave, such as agency workers or job applicants, the protected period ends two weeks after the end of the pregnancy.



It is not normally pregnancy or maternity discrimination to dismiss a woman because she remains on sickness absence once her maternity leave has ended, even if the sickness is pregnancy-related. This is because the protected period ends when the maternity leave ends. However, a dismissal for this reason is likely to be an act of direct sex discrimination if a real or hypothetical man 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 213). 


Any sick leave taken before a woman went on maternity leave must not be counted when working out her sickness absence record. 



Some conditions related to childbirth, such as post-natal depression, may amount to a disability under the EA 10 (see Chapter 7). 




It is against the law to subject any employee to a detriment (such as a formal attendance warning) for a reason related to pregnancy, childbirth or maternity (section 47(C)(2)(a), Employment Rights Act 1996 (ERA 96), regulation 19, Maternity and Parental Leave Regulations 1999 (MPLR 99)).



It is 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 99). No service is needed. The right is the same no matter how few hours the woman works. For a dismissal linked to “childbirth” to be automatically unfair, the dismissal must end the maternity leave (regulation 20, MPLR 99). 


There is similar protection against detriment and automatically unfair dismissal for asserting other statutory “time off” rights relating to parenthood (see Chapter 9).