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Employment Law Case Update - April 2014

Burnetts' team of employment law solicitors examine the latest case law developments.

Post Natal Depression Dismissal

Maternity related dismissals have been unlawful for many years but in the case of Lyons v DWP Job Centre Plus the question arose as to whether a dismissal for absences due to post-natal depression arising after maternity leave was similarly protected by anti-discrimination laws.

Miss Lyons told her employer that her maternity leave would finish at the end of the six months ordinary maternity leave period and that she would then take six weeks annual leave. After the six weeks annual leave Miss Lyons intended to return to work. As it turned out Miss Lyons did not return to work on the date she was supposed to as she was suffering from post-natal depression. Miss Lyons’ employer (the DWP) stated that they were unable to support her further as it was likely that she would be off work for a further 6 months.  With that in mind, DWP dismissed Miss Lyons.  She lodged a claim for unfair dismissal, direct sex discrimination and/or pregnancy and maternity discrimination in response.

Section 13 of the Equality Act 2010 (“the Act”) states that direct discrimination occurs where someone is treated less favourably (than others would have been treated in the same circumstances) because of a protected characteristic.

Pregnant women, in particular, have special protection under the Act beginning from the start of the pregnancy and ending when the woman returns from maternity leave. This period is known as the ‘protected period’. If a woman is treated unfavourably (because of pregnancy, a pregnancy related illness or exercising maternity rights) during the ‘protected period’ this will amount to discrimination.

The Employment Tribunal (ET) found that Miss Lyons’ dismissal had been unfair because DWP had failed to follow its own policies and procedures after discovering that Miss Lyons was suffering from post-natal depression. However, importantly, the ET rejected all the discrimination claims. Miss Lyons appealed but the Employment Appeals Tribunal (EAT) upheld the original ET’s approach.

The rationale behind the ET’s decision was that protection from pregnancy related discrimination only applied during the ‘protected period’. In Miss Lyons’ case her dismissal (and the unfavourable treatment) took place sometime after the end of the ‘protected period’ so the discrimination claims had to fail.

The EAT stated that if Parliament had wanted an extension beyond the ‘protected period’ then this provision would be contained within the Equality Act 2010.

The compensation Miss Lyons received for the unfair dismissal aspect of the claim was also reduced by 50% to reflect the fact that she could have been dismissed fairly had the DWP followed its policies and procedures.

This decision should allow employers to deal with pregnancy related illnesses which arise after the maternity leave period ends with less trepidation than before.

Although this case does not establish a new point of law it emphasises an important issue - that an absence after the ‘protected period’ can be taken into consideration (even if it arises as a result of a pregnancy related illness) and treated in the same way as any period of sickness suffered by a man when an employer is considering what action to take after the end of the ‘protected period’.

Whistleblowing and the reason for dismissal

Although it is relatively easy for employees to prove that they have made a whistleblowing disclosure, the case of Panayiotou v Chief Constable Kernaghan shows how difficult it is to establish that the reason for the dismissal and/or the detrimental treatment is the disclosure.

Mr Panayiotou was a police officer. He made protected disclosures relating to the way in which other officers' were treating victims of rape, child abuse and domestic violence. An investigation took place into Mr Panayiotou’s allegations. That investigation confirmed that Mr Panayiotou had been right to be concerned and suggested that changes should be made. However, Mr Panayiotou was not satisfied with the actions taken by the police authority after that investigation.

Whilst off sick Mr Panayiotou continued to raise concerns about the situation. When the Force did not take the action that he believed appropriate, Mr Panayiotou became convinced that matters were being covered up and his “campaign” to rectify the situation intensified.  In fact, Mr Panayiotou took things so far that the Tribunal found that Mr Panayiotou’s actions would have exhausted the patience of any employer. The Tribunal found that the Force was having to devote a great deal of management time to responding to Mr Panayiotou’s correspondence and complaints and that he had become completely unmanageable.

Whilst all this was going on, allegations were made (and corroborative evidence allegedly gathered) suggesting that Mr Panayiotou had been working in his wife’s business during his sick leave which wasn’t allowed under the terms of his contract.  As a result of these activities Mr Panayiotou was ultimately dismissed. The Tribunal found that the Force had been hostile to Mr Panayiotou because of the manner in which Mr Panayiotou had pursued his complaints and that this had been a factor in his dismissal but the Tribunal decided that Mr Panayiotou had not been dismissed because of the complaints themselves and that, therefore, Mr Panayiotou was not protected under the whistleblowing legislation.

Mr Panayiotou appealed on the basis that the manner of his complaints could not be divorced from the whistleblowing complaints in this way. The Employment Appeal Tribunal (EAT) disagreed. It held that the Tribunal was entitled to treat Mr Panayiotou’s attitude and the Force’s “escalating frustration” with his behaviour as separable from the fact that Mr Panayiotou had made protected disclosures and to decide that those factors were the reason why the employer acted as it did rather than the disclosures themselves.

This case follows the logic of other discrimination/detriment cases and confirms that employers can act against unreasonable employees if there are fair grounds to do so but both the Tribunal and the EAT were very critical of the employer’s approach in this case and so, even when employees are acting in a wholly unreasonable manner, employer’s need to take care to protect themselves from claims by dealing carefully with employee complaints seriously and fairly and by making sure that the links between whistleblowing disclosures and any subsequent disciplinary action are broken.

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Published: Monday 28th April 2014
Categorised: Employment

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