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14 April 2014

Dismissal for pregnancy-related absence post maternity leave not discriminatory

An employer could dismiss an employee for sickness absence for post-natal depression without it being discriminatory, because the absences were after maternity leave had ended, a Tribunal has ruled.

In Lyons v DWP Jobcentre Plus, an employee was dismissed for absence caused by post-natal depression after her maternity leave had ended. She claimed sex and/or pregnancy and maternity discrimination. The employer argued that dismissal for a pregnancy-related illness could not be discriminatory if the illness was after the end of maternity leave.

The Employment Appeal Tribunal agreed. As she was dismissed after the end of maternity leave, there was no unlawful discrimination.

Her claim for direct sex discrimination also failed. Her employer was entitled to compare that part of her period of sickness absence taken after the end of her maternity leave with a comparable period of sickness for a man - even if her absence was pregnancy-related.

Kathryn Fielder at B P Collins LLP recommends that employers considering dismissing an employee for sickness absence for a pregnancy-related reason may be able to do so lawfully if her period of maternity leave has ended. However, Kathryn urges caution before undertaking such action and suggests all employers seek legal advice first.

For more information about discrimination in the work place please contact Kathryn at employmentlaw@bpcollins.co.uk or call 01753 279029.

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