In Lyons v DWP Jobcentre Plus, Lyons’ (L) had been absent from work for just under 6 months, suffering from post-natal depression. L was dismissed on the basis that she had been absent for a long time, her absence could no longer be supported and she was unlikely to return to satisfactory attendance within a reasonable time. The EAT upheld an employment tribunal’s decision that L’s complaints of direct sex discrimination and/or pregnancy and maternity discrimination, because of her dismissal for periods of absence due to post-natal depression arising after her period of maternity leave, should be rejected.

L was treated unfavourably for a pregnancy-related illness by being dismissed for post-natal depression, but such unfavourable treatment only amounts to discrimination under the S.18 pregnancy/maternity leave provisions of the Equality Act 2010 (EA 2010) if it occurs between the beginning of the pregnancy and the end of maternity leave. In this case, the unfavourable treatment took place after the end of her maternity leave and, therefore, could not amount to discrimination under S.18.  As far as the direct discrimination claim under S.13 of the EA 2010 was concerned, the ECJ’s decision in Brown v Rentokil applied. When a pregnancy-related illness arises during pregnancy or maternity leave and persists after the maternity leave period, an employer is permitted to take into account periods of absence due to that illness, after the end of maternity leave, in computing any period of absence justifying dismissal, in the same way that a man’s absences for illness are taken into account. The EAT commented that if Parliament had intended to extend the protection relating to pregnancy or maternity in such circumstances provision would have been made within S.13 or S.18, but clearly this had not happened. Therefore, the case fell outside the EA 2010. 

The EAT also addressed a further ground of appeal. While there was no challenge to the tribunal’s finding of unfair dismissal, as the employer had been found not to have followed its own policies and procedures, the EAT held that the tribunal was entitled to apply a 50% reduction to L’s compensation reflecting the chance that she would still have been dismissed if the employer had acted fairly and reasonably, given L’s continuing ill health and particularly taking note that no recovery had taken place 2 to 3 months after dismissal.

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