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 those 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 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, any periods of pregnancy-related sickness absence that predate the maternity leave must not be taken into account 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 225). 



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



It is against the law to subject any employee to a detriment (such as issuing 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).


It is also 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 decision to dismiss must bring the maternity leave to an end. There is similar protection against detriment and dismissal for asserting other statutory “time off” rights relating to parenthood (see Chapter 9).