Settlement Agreements and Post-natal depression

Post-natal depression (PND) is surprisingly common. The Royal College of Psychiatrists estimates that 10-15 in every 100 women become depressed after having a baby. Whilst for most the symptoms of PND begin within 1-2 months of giving birth, for some symptoms can develop later.

In a recent appeal (Lyons v DWP JobCentre Plus) in the Employment Appeals Tribunal (EAT) the issue of post-natal depression was considered in relation to a claim for discrimination. The Claimant had brought a claim for direct sex discrimination as well as pregnancy and maternity discrimination. She was dismissed as she had been off work whilst suffering from PND. She successfully sued her ex employer for unfair dismissal but both of her claims for discrimination were not successful.

Relating to her claim for pregnancy and maternity discrimination, unfair treatment will only amount to discrimination if it occurs between the beginning of the pregnancy and the end of maternity leave. This is known as the ‘protected period’. In this case the Claimant was dismissed after the protected period and therefore her appeal failed.

In terms of a claim for direct sex discrimination, the Claimant’s appeal also failed. The EAT stated that “where a pregnancy-related illness arises during pregnancy or maternity leave and persists after the maternity leave period, an employer is permitted to take into account periods of absence due to that illness, after the end of maternity leave, in computing any period of absence justifying dismissal, in the same way that a man’s absences for illness are taken into account”. In summary, any period of absence that occurs after maternity leave has ended can be compared by the employer to a period of sickness of a man. In this case, there was no discrimination as the duration of the absence was such that a man would have also been dismissed if he had that amount of sickness leave.

It is in precisely these types of scenarios that a claimant would be well advised to seriously consider accepting a Settlement Agreement if one is offered. For someone who has clearly suffered a prolonged period of stress and depression, the anxiety that comes from having to battle through months, if not years, of tribunal proceedings should, where possible, be avoided.

If you have found yourself in a similar position and have been presented with a Settlement Agreement, please do contact a member of the team who would be glad to assist you with it.

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