Returning to work following maternity leave can be a difficult time for many women. For women who have experienced postnatal depression during maternity leave, this can be particularly challenging. Women are often vulnerable and require support from their employers upon their return. Therefore, it is important for women in that position to be aware of their rights.

Awareness relating to mental health problems associated with pregnancy and having a new baby is steadily increasing. Help and assistance with the challenges of being a new mother with mental health issues is becoming more available. However, one topic that is seldom discussed is the fact that many women are still experiencing these issues once maternity leave has ended. Therefore, if health issues are still ongoing when a woman returns to work, what are her rights with her employer?

Postnatal depression and work - what is the legal position?
It is well recognised that many women experience post-natal depression for over 12 months following on from diagnosis. This is especially the case when treatment is not sought at an early stage. Therefore, it must be the case that the number of women returning to work still in a period of depression is significant.

The Equality Act 2010 offers protection in relation to discrimination on the basis of pregnancy or maternity. Under the Act, a woman who has a pregnancy-related illness has a right to legal protection. This protection being that she should not be subjected to less favourable treatment on this basis. Therefore, if a woman experiences pregnancy-related mental health issues during pregnancy, protection is in place.

However, for a woman who has recently given birth, the position then is more complex. Conditions related to the birth, such as postnatal depression, are covered by the Act until the woman’s return to work or the end of the statutory maternity period, whichever is soonest. After this time, if a woman wants to bring a claim that they have been discriminated against due to these conditions, then they may have to do so on the grounds of sex discrimination.

This means that a woman suffering discrimination at work because of such conditions must be able to show that she has been treated less favourably that a man would have been treated in a similar or the same situation. During pregnancy and maternity leave there is no need to show this. This can cause difficulties because an employer may well treat a man who is suffering from a mental illness in the same manner which would mean that a sex discrimination claim may fail.

However, there may still be some protection for new mothers returning to work. This is on the basis that the condition may meet the definition of a disability under the Equality Act 2010. In order to qualify, the condition must have or be likely to have a long term adverse effect on a woman’s ability to carry out day-to-day activities. Long term is viewed as around 12 months. When an employee has a disability the employer has a duty not to treat them less favourably because of the condition, or matters arising from it. The employer also has a duty to consider making reasonable adjustments for the condition. Therefore the Act can assist some women discriminated against due to postnatal depression.

Finally
Therefore, For employers, it’s important to remember that if a female employee returns to work still experiencing postnatal depression then they may be covered by the Equality Act 2010. Employers need to address these issues sensitively and be prepared to make reasonable adjustments. Women returning to work still experience postnatal depression need to consider if they need support. If they do, it is important the employer knows about the condition. This can be difficult but unless the employer knows then their obligations to you under the Act don’t come into play and cannot expect their employer to meet their obligations.

Rachel Clayton
Solicitor
Employment for Individuals