As most employers ought to be aware, it is unlawful and discriminatory for an employer to take into account absences arising from pregnancy and/or maternity, in assessing an employee’s attendance record.
Pregnancy and maternity cannot be compared to absences arising from other causes, and it is therefore no defence for an employer to show that an employee off for a different reason for a similar length of time would have been dismissed.
What about other absences, following the maternity period, linked to having a child though? Will they also be protected? This was the issue facing the EAT in the case of Lyons v DWP JobCentre Plus. In this case, the claimant was dismissed due to absences occasioned by postnatal depression. Given the fact that this illness was directly connected to childbirth, the Claimant argued that her dismissal was discriminatory.
The EAT disagreed, holding that the employer was entitled to take into account any periods of absence that occurred after the end of the maternity period and deal with the absence in the same way as they would deal with an absence for any other reason (while of course excluding any pregnancy related absences that occurred before the end of the maternity period).
Pregnant women and those on maternity leave have a variety of protections under the law and any employer seeking to take action in relation to a pregnant woman or one on maternity leave, particularly in relation to a dismissal, would be well advised to speak to his or her legal manager.