Should maternity or maternity-related absence be used in regard to ceasing pay for non-attendance?Posted in : Seamus Says - Employment Law Discussion on 6 April 2018
Q. Should maternity or maternity-related absence be used in regard to ceasing pay for non-attendance?
Scott: That could be sick leave or miscarriage and other issues around maternity-related issues. Is there any case law to substantiate this? We discussed the case of Carrabyne v Department for Work and Pensions. So, tell us about that, discounting the maternity-related things, not the flu-type things.
Seamus: That's a 2016 case. It's a fairly recent case. It doesn't involve pregnancy or maternity leave but it did relate to disability. I think the claimant, Mrs. Carrabyne had a problem with depression, which was characterised as a disability. To be fair to Mrs. Carrabyne, she'd done here best in order to manage her disability.
There had been periods of time off, but when everything was looked at and considered and certainly if you read through the judgement, it's put very well in terms of the fact that there were issues through all of the absences. Essentially, she was dismissed from her employment. We should make that a point, first of all, that she was dismissed on the basis of her level of absence. She was saying that her disability-related absences should have been disregarded.
When everything was looked at through examination and cross-examination, it actually turned out there was only four days where she had a stomach bug and wasn't able to attend work. All the other absences were to do with her disability. As I say, she'd done her best in terms of trying to manage that. The tribunal really were swayed by the fact that there were only four days that weren't related to the disability and the point was would you in normal circumstances dismiss someone for having four days' absence and I think that decision was held to be entirely unreasonable.
The shocking factor in a lot of ways to employers is there was £100,000 awarded to Mrs. Carrabyne. It wasn't that there wasn't a valid case for discrimination or anything. It was a serious flaw, £100,000, a big lesson there. I think if we take that and apply that to our miscarriage sick leave. I think if it's certainly a miscarriage, I would possibly characterise it as not being protected under pregnancy/equality legislation. But I would have thought that certainly if it was pregnancy-related or if it was disability-related, then there's protection there for the employee in that respect.
More on Discrimination & Equality
- Herry v Dudley Metropolitan Borough Council 
- Calculation of Redundancy Pay During a Period of Parental Leave
- Equal Opportunities Directive – Breadth of Protection
- Komeng v Creative Support Ltd 
- Is an employer under any obligation to provide a reference for a former employee upon their request?
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