SICKNESS ABSENCE - 13.07.2020

Postnatal depression after maternity leave

According to the NHS, postnatal depression affects over one in ten women and can start at any time in the first year after giving birth. What’s the legal position if an employee due back from maternity leave fails to return because she has postnatal depression?

Protected period

S.18(6) Equality Act 2010 (EA) provides for a “protected period” which starts when an employee’s pregnancy begins and, assuming she has the right to ordinary and additional maternity leave, finishes at the end of her additional maternity leave period or (if earlier) when she returns to work after the pregnancy, e.g. if she returns after, say, nine months of maternity leave. During this protected period, any unfavourable treatment of the employee because of pregnancy, a pregnancy-related illness or absence on maternity leave constitutes unlawful pregnancy and maternity discrimination. In addition, under ss. 47C and 99 Employment Rights Act 1996 and regulations 19 and 20 Maternity and Parental Leave etc. Regulations 1999 (SI 1999/3312) any dismissal of an employee because she is pregnant, has given birth or has taken maternity leave is automatically unfair and she also has the right not to be subjected to any detrimental treatment on these grounds. However, the protected period doesn’t extend beyond the end of the employee’s additional maternity leave period, even if she fails to return to work then due to a maternity-related illness.

Pro advice. In practice, once the employee’s additional maternity leave end date is past, or she has already returned to work earlier than that and then gone off sick, any subsequent sickness absence is no longer afforded special protection under the EA. Absence for postnatal depression can be treated in the same way as any other form of illness.

Pro advice. If an employee submits a fit note at the end of her additional maternity leave citing postnatal depression, at that stage simply write to acknowledge the fit note (see Follow up ) and record the absence as sick leave in the normal way. She should be paid statutory sick pay (SSP) if she qualifies for it, or contractual sick pay if you have a contractual sick pay scheme.

No discrimination

The key case here is Lyons v DWP Jobcentre Plus 2014 (see Follow up ). In that case, the Employment Appeal Tribunal (EAT) upheld an employment tribunal’s decision that an employee, who was dismissed having been off sick with postnatal depression for several months after the end of her maternity leave, was not discriminated against because of either pregnancy or sex. The EAT reiterated that pregnancy discrimination under s.18 EA only occurs where a woman is treated unfavourably during the protected period. In addition, where a woman is dismissed because of maternity-related sickness absence where her maternity leave has ended, direct sex discrimination only occurs if she is treated less favourably than her employer would treat a sick man in similar circumstances.

Pro advice. The same position on sex discrimination applies in relation to other gender-specific sickness absences, for example testicular cancer or due to an hysterectomy operation. To succeed in a claim, the employee needs to be able to show they have suffered less favourable treatment than an appropriate comparator of the opposite sex.

Pro advice. Caution is still needed because were you to take action under your absence management procedures with a view to eventually dismissing the employee for long-term incapacity, it is still open to a tribunal to make a finding of unfair dismissal on ordinary principles. We discussed managing long-term sickness absence in yr.3, iss.2, pg.4 (see Follow up ).

Assuming the employee has reached the end of additional maternity leave, or has already returned to work, any subsequent maternity-related sickness absence falls outside the “protected period” and can be treated in the same way as any other illness. You must not treat her less favourably than you would a sick man.

© Indicator - FL Memo Ltd

Tel.: (01233) 653500 • Fax: (01233) 647100

subscriptions@indicator-flm.co.ukwww.indicator-flm.co.uk

Calgarth House, 39-41 Bank Street, Ashford, Kent TN23 1DQ

VAT GB 726 598 394 • Registered in England • Company Registration No. 3599719