In Lyons v DWP/Jobcentre Plus, Lyons developed post-natal depression following the birth of her child. She decided not to take her full period of maternity leave and was due to return to work on 17 September, but her GP said she would not be fit to return until 14 October because of her depressive state. She remained unwell and by the following January thought she might be able to come back to work part-time, but she was dismissed. A tribunal, however, rejected her direct sex and pregnancy/maternity discrimination claims.
As far as direct discrimination was concerned, ECJ case law was quite clear that: (i) in the case of an illness manifesting itself after the maternity leave, there is no reason to distinguish an illness attributable to pregnancy or confinement from any other illness; and (ii) even where the illness starts during pregnancy or maternity leave, any absence after maternity leave is to be treated in the same way as a man's absence, of the same duration, due to incapacity to work. As a man would have been treated in the same way, there was no direct sex discrimination.
In considering the direct pregnancy/maternity discrimination provisions as set out in S.18 of the Equality Act 2010, then by being dismissed for post-natal depression, Lyons had been treated unfavourably due to a pregnancy-related illness. But, S.18 can only apply to any discrimination which occurs in the period between the start of pregnancy and up until, and including, the last day of maternity leave. Therefore, as Lyons had given an early date for return, but had failed to return on the due date, her maternity leave had ended and S.18 could not apply.
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