Dismissal for pregnancy-related sickness

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

It is not pregnancy or maternity discrimination to dismiss someone for pregnancy-related sickness absence, such as post-natal depression, that continues after the maternity leave period has ended (Lyons v DWP Job Centre Plus [2014] UKEAT 0348/13/1401). Neither will the dismissal be sex discrimination if the employer can show that a man with the same sickness absence record (excluding absences during pregnancy or maternity leave) would have been treated in the same way (see page 157). The dismissal of a woman who is unable to return to work because of a pregnancy-related illness, although not necessarily discrimination, is likely to be automatically unfair, as a breach of the prohibition on dismissals for a reason related to pregnancy, childbirth or maternity, where the dismissal ends the maternity leave (section 99 ERA 96).

If a woman is unable to return to work at the end of maternity leave, the length of her sickness absence should be calculated from the date she was due to return (Kwik Save v Greaves [1998] IRLR 245).