Lyons v DWP Jobcentre Plus

Unfavourable treatment for pregnancy-related illness occurring after the protected period is not pregnancy and maternity discrimination under Equality Act 2010, section 18. Nor does section 13 create a wider, comparator-free claim where the treatment is based solely on such illness. Following Brown v Rentokil, absence after maternity leave may be counted in the same way as a man’s sickness absence, even where the illness began during pregnancy or maternity leave.

A Polkey reduction remains a matter of fact and judgment for the Employment Tribunal. An element of speculation does not prevent a tribunal assessing the likely outcome of a fair procedure, provided it considers reliable evidence and directs itself properly.

The claimant’s employment was terminated after prolonged absence caused by post-natal depression. The Employment Tribunal upheld her unfair-dismissal complaint but dismissed claims under sections 13 and 18 of the Equality Act 2010. It held that the relevant treatment occurred after maternity leave and that Caledonia Bureau Investment and Property v Caffrey could not be followed in light of later European authority. It also reduced compensation by 50 per cent under Polkey.

The claimant appealed, arguing that her dismissal was direct sex discrimination because her illness had arisen during maternity leave, and that the 50 per cent reduction was impermissibly speculative and insufficiently reasoned.

1. Discrimination. The appeal was dismissed. The claimant could not rely on section 18 of the Equality Act 2010. The relevant unfavourable treatment, including dismissal, occurred after the end of her maternity leave and therefore outside the statutory protected period. Her notified return date was 17 September 2010, and she had not notified a later return under regulation 11 of the Maternity and Parental Leave Etc Regulations 1999.
2. Section 13 did not provide an alternative route to a comparator-free claim. The claim proceeded solely on the basis that the claimant had been treated unfavourably because of pregnancy-related illness. The European authorities, particularly Hertz, Larsson and Brown v Rentokil, established that illness arising from pregnancy or childbirth and continuing after maternity leave is subject to the ordinary rules applicable to sickness absence. Post-maternity-leave absence may therefore be taken into account on the same basis as a man’s absence.
3. The reasoning and conclusion in Caledonia Bureau Investment and Property v Caffrey could not stand after Brown v Rentokil. The Employment Tribunal was entitled not to follow it. The argument that domestic law supplied more favourable protection was rejected. Sections 13 and 18 contained no wider protection on the facts relied upon.
4. Polkey reduction. The Employment Tribunal was entitled to reduce compensation by 50 per cent. The assessment required common sense, experience and a sense of justice. Some uncertainty or speculation was inevitable and did not prevent an assessment based on the evidence. The Tribunal had considered the claimant’s medical history, the evidence concerning her treatment, the effects of workplace contact, and the possibility that she would have recovered or returned earlier if fair procedures had been followed.
5. The Tribunal’s conclusion was just and equitable and disclosed no error of law. The EAT declined permission to amend the appeal to allege inadequate reasons. The appeal was dismissed in its entirety.

• Employment Appeal Tribunal: dismissed the appeal from the London (Central) Employment Tribunal.
• Employment Tribunal: upheld the unfair-dismissal complaint, dismissed the pregnancy/maternity and direct-sex-discrimination complaints, and applied a 50 per cent Polkey reduction.