Is dismissal for absences arising from post-natal depression discriminatory?
No, according to the recent case of Lyons v DWP Job Centre Plus.
Ms L was absent for a period of 6 months following her expected return from maternity leave as a result of post-natal depression which she developed during her maternity leave. She was subsequently dismissed and brought a claim for both pregnancy and maternity related discrimination and sex discrimination.
In considering whether Ms L’s dismissal could amount to pregnancy or maternity related discrimination, the Employment Tribunal had to consider firstly, whether Ms L had suffered unfavourable treatment because of an illness suffered by her as a result of her pregnancy and secondly, whether that unfavourable treatment had occurred in the ‘protected period’.
The Employment Tribunal took the view that Ms L had been unfavourably treated because of a pregnancy related illness (her post-natal depression), however went on to hold that this did not amount to pregnancy or maternity related discrimination as the unfavourable treatment had not occurred within the ‘protected period’ of her maternity leave. She had not been dismissed until 6 months later.
In considering whether Ms L’s dismissal could amount to sex discrimination, the Employment Tribunal had to consider whether Ms L had been treated less favourably than a man would have been treated in similar circumstances. EU law does not distinguish between pregnancy related illnesses which arise during maternity leave and continue after maternity leave and pregnancy related illnesses which arise after maternity leave. The Employment Tribunal therefore took the view that the DWP were entitled to take into account Ms L’s period of absence after the expiry of her maternity leave in the same way that they would be entitled to take into account a man’s period of absence for illness, despite the fact that her post-natal depression had developed during her maternity leave and found that she had not been directly discriminated against on the grounds of sex. In considering whether the length of absence justified her dismissal, the DWP had not treated her less favourably than they would have treated a man.
Ms L’s dismissal for absences caused by post-natal depression was therefore not discriminatory and this was subsequently upheld on appeal to the Employment Appeal Tribunal.