Is it necessarily unlawful for an employer to dismiss an employee for incapability if she fails to return to work following the end of maternity leave, where the reason for the absence is post-natal depression (or other pregnancy-connected illness)?
The simple answer is that the law is unclear.
In a recent case, Lyons v DWP Jobcentre Plus, the EAT has confirmed that the “special protection” afforded to women under the Equality Act 2010 in connection with pregnancy or childbirth ceases when maternity leave ends, even where a pregnancy-related illness begins during maternity leave and continues beyond.
During her employment with Jobcentre Plus, the Claimant had suffered from depression and had had periods of sickness absence for that reason. In 2009 the Claimant became pregnant and informed her employer that she would be taking six months’ ordinary maternity leave, followed by six weeks’ annual leave, commencing from 1st February 2010 and returning to work on the 17th September 2010. Following the birth, the Claimant began suffering from severe post-natal depression and was prescribed medication. Two days before she should have returned to work, the Claimant was signed off sick by her GP with post-natal depression. She did not return to work and was dismissed because of her continuing incapability on 1st March 2011.
The Employment Tribunal upheld a finding of unfair dismissal, but did not accept that the Claimant had been treated less favourably because of her pregnancy/maternity related illness under section 18 of the Equality Act. This was because the dismissal did not take place in the protected period (the period from when pregnancy begins until the end of maternity leave).
The Claimant appealed. She sought to argue that because the illness that started in her maternity leave and continued after, her dismissal amounted to unlawful pregnancy and maternity discrimination. The EAT rejected this argument. It held that section 18 requires the unfavourable treatment in question to take place during the protected period, and that since the Claimant had informed the Respondent of the date of her return to be the 17th September and had given no intention to return at a later date, the unfavourable treatment occurred outside the protected period. Ms Lyons could not therefore complain under section 18.
Based on the EAT’s analysis , following the end of the protected period, a woman off sick, even with a pregnancy-related illness, must compare her own treatment with how a man would be treated in similar circumstances in order to have a successful claim under the Equality Act.
However, what is not immediately clear is the position under the automatic unfair dismissal provisions set out in section 99 of the Employment Rights Act 1996 (dismissal connected with pregnancy or the fact that the employee has given birth to a child). This is because the liability under section 99 was not an issue in Lyons. However, inCaledonian Bureau Investment and Property v Caffrey, the Scottish EAT has previously decided that dismissal because of a pregnancy-related medical condition persisting after the end of the protected maternity period was automatically unfair.
On the one hand it would be strange if a dismissal in these circumstances could be automatically unfair as being in connection with pregnancy/having given birth to a child, but not pregnancy and maternity discrimination under the Equality Act for the same reason. On the other hand, the “protected period” is clearly defined in section 18 of the Equality Act but is not so defined in Section 99 of the Employment Rights Act. This clearly leaves room for a different outcome under each type of claim. It might simply be the case that UK law here goes beyond EU law in this situation and that was the intention of the legislators. The state of the current case law appears to support such an outcome.
For now at least, a cautious employer should assume that the termination of a woman’s employment on grounds which are connected with pregnancy or having given birth to a child remains unlawful, although of course any compensatory award would be subject to the statutory limits currently limited to 52 weeks’ pay or £76,574, whichever is the lower.
Lyons v DWP Jobcentre Plus, 14 January 2014,