Capability dismissal based on absences for post-natal depression was not discriminatory

Miss Lyons v DWP Jobcentre Plus [EAT] | March 2014

In this case the claimant, after having her baby, never returned to work at the end of her maternity leave. The claimant had several months off work on certified sick leave because she continued to suffer from post-natal depression which started during her maternity leave. The respondent commenced a formal capability procedure against the claimant that eventually led to her dismissal based on the expectation she would not be able to return to “satisfactory attendance” within a reasonable period of time.

The claimant claimed in the employment tribunal that her dismissal was both unfair and that she had been directly discriminated against because of her pregnancy and sex. At the employment tribunal her claim for unfair dismissal was upheld but her discrimination claims were unsuccessful. The employment tribunal said that the claimant had been treated unfavourably about her pregnancy related illness (the post-natal depression) and this made the dismissal unfair (see below) but there was no discrimination. The EAT had to look on appeal at the discrimination claims.

The EAT agreed with the employment tribunal that the claimant had not been subject to pregnancy and maternity discrimination (see section 18 of the Equality Act 2010) because the absences that the respondent took into account when deciding to dismiss the claimant, took place only after the claimant’s maternity leave had ended. It is only absences that take place during what is called the “protected period” that must never be taken into account when deciding whether to dismiss an employee who is suffering from an illness suffered as a result of her pregnancy. The protected period runs from the start of maternity leave until its end date.

Pregnancy discrimination (under section 18) only applies when a female employee is treated unfavourably during the protected period.

The EAT also looked at the question of direct sex discrimination: Had the claimant been treated less favourably compared to a male comparator? (see section 13 of the Equality Act 2010). The EAT upheld the employment tribunal’s decision that had been no direct sex discrimination. This was because the respondent, in this case, showed that it would have treated a sick male employee in the same way as the claimant was treated in relation to sickness absences that occurred after the claimant’s maternity leave had ended. Thus there had been no less favourable treatment of the claimant because of her sex.

Although this case is important because of the discrimination content, it’s worth looking at why the employment tribunal held the dismissal was unfair. The tribunal held that the claimant had been treated unfavourably for a pregnancy related illness and this made the dismissal unfair (but not discriminatory). The respondent had not followed its own capability procedures and had not acted reasonably in dismissing the claimant. The tribunal held that the procedure that culminated in her dismissal had not been followed correctly or fairly and her medical condition had been inadequately investigated. For example, the respondent did not ask for a medical report from the claimant’s GP. The respondent had also delayed referring the claimant to its occupational health service in breach of its procedures. The line manager who had most contact with the claimant was found to have been insensitive and left the claimant feeling unduly under pressure to return to work and worried that her job was at risk.

This decision serves as a timely reminder that following HR best practice is important and that procedural and substantive failures can lead to expensive liabilities especially as claims based on pregnancy or maternity leave are not subject to the two year rule for continuous period of service.