Most employers broadly understand their rights towards parents but have niggly questions around the edges. Recently the EAT has dealt with one in the case of Lyons v DWP Jobcentre Plus, relating to the position where a woman’s maternity leave has come to an end but she remains off work due to post-natal depression. Can she bring a claim for pregnancy related discrimination? Not automatically she can’t the court confirmed – she would only suffer sex discrimination if her employer treats her less favourably than it would treat a sick man in similar circumstances. Thus if the length of absence would equally not be tolerated for a man and the same procedures are used to bring her employment to an end such as obtaining medical advice and consulting with her before giving notice, she is unlikely to succeed in raising a claim of discrimination.

In another European case (CD v ST) the issue of the rights around surrogacy have been defined. It dealt with the position of the person who becomes a mother although she has not actually been pregnant or given birth to the child. Can she take maternity leave? No said the ECJ, whether or not she is going to breastfeed the child. It also went on to confirm that there is no sex discrimination to deny the mother paid maternity leave as a male parent would be in the same position of not having any entitlements either.

It is worth noting that the position in England and Wales will change as a result of the Children and Families Act. Section 122 gives the Secretary of State the power to make regulations providing for statutory adoption leave to be available to employees who have applied, or intend to apply, for a parental order under s54 of the Human Fertilisation and Embryology Act 2008. Under that Act, a court may make a parental order, under which a child will be treated in law as the applicants’ own, where the child has been born by a surrogate and the gametes of at least one of the applicants were used to create the embryo. That is not yet in force so for now, the parent is stuck with holiday and unpaid leave, if they can get their employer to agree.

One woman involved in the case also tried to argue a disability angle namely that not having a functioning uterus placed her at a disadvantage – this was given short shrift – her medical condition, did not, the ECJ felt, prevent her from having a full and active participation in professional life. That wording is not in keeping with the definition of a disability for the purposes of our Equality Act 2010 so it is still theoretically possible for someone to argue this one here. However the person would have to show their impairment has a substantial adverse affect on the employee’s “normal day-to-day activities”. This might prove a difficult hurdle to surmount. Even if the employee is disabled under the Act, she would also have to show that the employer’s refusal to allow her paid leave amounted to a failure to make reasonable adjustments which seems unlikely given the stance taken in sick pay cases such as HMRC v O’Hanlon.