Post-natal depression is undoubtedly a miserable existence for those unfortunate women who have to endure it. The sufferer is burdened with feelings of tiredness, anxiety, distress and helplessness. This wretched state can continue way past the mother’s expected return to work following her maternity leave. With as many as one in seven mothers expected to suffer from this disorder, the question for employers is whether it is lawful to dismiss an employee who is unable to return to work as a result of this pregnancy–related condition.
Ms Lyons worked for the DWP Jobcentre Plus for some 10 years before commencing her maternity leave and developed post-natal depression following the birth of her child. She was due to return to work on 17 September but, because of her depressive state, she was signed off work and remained off sick until she was dismissed the following March on capability grounds.
The Tribunal found that the Jobcentre had not followed its own policies after discovering Ms Lyon was suffering from post-natal depression. For example, there was no occupational health assessment and her managers attended review meetings without a clear understanding of her condition and showed a lack of concern. The Tribunal found that her dismissal had been unfair and that the manner in which the Jobcentre had dealt with Ms Lyons was ‘insensitive, unsupportive and oppressive’.
But what about the separate issue of pregnancy/maternity discrimination? The law states that ‘a woman is discriminated against on grounds of pregnancy and maternity if, because of an illness suffered as a result of her pregnancy, she is treated unfavourably during the protected period’.
Ms Lyons began to suffer from the illness during her maternity leave and continued to suffer up to and including the end of her maternity leave and eventual dismissal. The dismissal occurred outside the protected period (the duration of the statutory maternity leave period up to 52 weeks) because Ms Lyon’s maternity leave had ended and she was on sick leave rather than maternity leave when she was dismissed. As a result, the Jobcentre was permitted to take into account her period of sickness absence from work in the same way as a man’s sickness absence. The Employment Appeal Tribunal (EAT) held that Ms Lyons had not been discriminated against on the grounds of her pregnancy or maternity and her claim failed.
The EAT suggested that problems inherent in pregnancy and childbirth occur during the maternity leave period and women are protected from pregnancy/maternity discrimination for the duration of that period. After the end of maternity leave, however, male and female workers are equally exposed to illnesses. The legislation focuses on the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant or who have recently given birth. Following maternity leave, a female worker’s incapacity for work brought on by illness should be treated in the same way as a male worker’s absence.
Employers can be reassured that the risks of falling foul of the pregnancy/maternity discrimination legislation are minimised following the end of the maternity leave but organisations must avoid being labelled as ‘insensitive, unsupportive and oppressive’. This can be achieved by ensuring managers have an understanding of the complexity of a disorder like post-natal depression and the effects that it has on a female worker’s ability to work. Had the Jobcentre dealt with Ms Lyons appropriately and with concern, perhaps they could have avoided an unfair dismissal ruling and maybe Ms Lyons would have been able to return to work at an earlier stage.