Was dismissal for long-term absence relating to post-natal depression discriminatory?

No, said the Employment Appeal Tribunal (“EAT”) in the case of Lyons v DWP Jobcentre Plus UKEAT/0348/13.

Miss Lyons had worked for the Job Centre plus for over 10 years and, during this time, had suffered from various periods of depression.

In February 2010, Miss Lyons gave birth to her child. She was subsequently diagnosed with post-natal depression and did not return to work following her maternity leave.

In March 2011, Miss Lyons was still unable to return to work and was dismissed by her employer for reason of capability. She subsequently brought claims for unfair dismissal and discrimination on the grounds of pregnancy and sex.

The first instance Employment Tribunal (“ET”) upheld the claim for unfair dismissal as DWP had failed to follow a proper procedure in dismissing Miss Lyons on the grounds of capability. However both the ET and EAT dismissed Miss Lyons’ claims for discrimination, giving the following reasons: -

• Pregnancy Discrimination – Pregnancy discrimination occurs where an employer treats an employee unfavourably because of her pregnancy or because of an illness she has suffered as a result of her pregnancy during the “protected period”. This period begins at the outset of pregnancy and ends at the end of maternity leave. In this case, Ms Lyons’ dismissal took place outside of (and some time after) the protected period;
• Sex Discrimination – the EAT cited the case of Brown v Rentokil. This case states that, if an employee is dismissed due to a pregnancy-related absence after maternity leave, the dismissal shall only be discriminatory on the grounds of sex if the employer has treated the female employee less favourably than it would have treated a sick male employee in similar circumstances. In the present case, Miss Lyons did not argue that she had been treated less favourably than a comparative male colleague and therefore the Tribunal did not make a finding of sex discrimination;

This case is a useful reminder to employers that pregnancy-related illnesses following maternity leave and outside of the “protected period” are not afforded special protection under the Equality Act 2010. Where dismissing employees for ill health capability, employers must still ensure that a consistent and fair procedure is followed and they must be live to other areas of risk such as disability discrimination.