The Employment Appeal Tribunal (EAT) has ruled that the dismissal of an employee with post natal depression on capability grounds, after the ‘protected period’ (which is the period between the beginning of the pregnancy and the end of maternity leave), did not amount to sex discrimination and/or pregnancy and maternity discrimination.
In this case the claimant had been diagnosed with moderately severe post-natal depression after her period of maternity leave. The claimant had been due to return to work but on the expiry of her maternity leave immediately took an extended period of sick leave. About one year after that sick leave commenced, her employer took the decision that they could no longer support the claimant’s absence and dismissed her. The claimant brought claims for unfair dismissal, direct sex discrimination and/or pregnancy and maternity discrimination. The Tribunal rejected the discrimination aspects of her claim and she appealed to the EAT.
In rejecting the discrimination arguments put forward by the claimant, the EAT examined the relevant sections of the Equality Act 2010. The EAT found that the wording in the legislation made it clear that there could be no pregnancy and maternity discrimination when the alleged unfavourable treatment occurred outside of the ‘protected period’.
Turning to the direct sex discrimination argument, the EAT emphasised that an illness (even if related to pregnancy) that occurs after maternity leave should be treated the same as any other illness. Therefore there would be no distinction between post-natal depression after the ‘protected period’ and an illness suffered by a man generally. Accordingly there was no discrimination on the grounds of sex and the employer was entitled to take into account the absences after the claimant’s maternity leave when deciding whether to dismiss.