The claimant in Lyons v DWP Jobcentre Plus took maternity leave, telling her employer that her maternity leave would finish at the end of the six months ordinary maternity leave period and that she would then take six weeks' annual leave, following which she would return to work. In the event she was diagnosed with post-natal depression and did not return to work before her dismissal some months later. She did not seek to extend her maternity leave period, so she was treated as having returned to work at the end of ordinary maternity leave. She argued that her dismissal was either direct pregnancy discrimination or direct sex discrimination.

The direct pregnancy discrimination claim was unsuccessful. The Equality Act section on pregnancy discrimination applies to treatment during the "protected period", which starts at the beginning of pregnancy and ends on a woman's return to work from maternity leave. The dismissal took place some months after the end of the protected period, so the claim had to fail.

The direct sex discrimination claim also failed. It is clear from European case law that an employer is entitled to take into account absence after the end of the period of maternity leave in a decision to dismiss. A dismissal does not amount to sex discrimination just because the cause of the absence is related to childbirth or pregnancy. 

Although this is not a new point of law, it is helpful to have a recent restatement of the point that it is not sex discrimination to dismiss for a maternity related absence after the end of maternity leave if a man with the same level of absence would have been treated in the same way. A warning footnote should be added, however.  The claimant's illness would presumably have been within the definition of disability and she might therefore have been able to make a disability discrimination claim relating to her dismissal.