Time for fertility rights

Recent figures show that one in six couples experience infertility. It is clear that fertility issues are wide ranging and have an impact on work and home life alike. Given the age of those affected, as well as the cost of treatments, it is likely that all of those struggling with fertility issues are in work, with a high proportion being employees.

In the UK, if you become pregnant through IVF, you have all the same pregnancy and maternity rights as with non-IVF pregnancies. However, there is no legal right for time off work for IVF treatment or related sickness. With a new private member’s bill, the Fertility Treatment (Employment Rights) Bill, being read to Parliament, this matter is being highlighted as a relevant and key issue for employees, and consequently employers too.

Limits of protection

At the moment, there is no statutory entitlement to time off to undergo fertility treatment. If an employee requires time off for IVF treatment, they will need to take annual leave, unless their employer agrees to special leave or unpaid leave. An employer might also allow an employee to work flexibly to attend such appointments, but an employee would not be entitled to sick leave, because they are technically not sick. This means that options are limited.

The Fertility Treatment (Employment Rights) Bill, tabled by Conservative MP Nickie Aiken, would give individuals and couples the right to take time off to attend fertility clinic appointments, just as they are entitled to for antenatal appointments. Employers would also be required to have a workplace fertility policy, which would include guidance on things like time off work for treatment and miscarriage, flexible working and access to available HR support.

The bill has been tabled as there is currently no specific protection for women undergoing IVF treatment, or their partners. Infertility is not a disability and therefore does not garner protection under the Equality Act 2010.

Section 18 of the 2010 Act states that it is unlawful for an employer to discriminate by treating a woman unfavourably because of her pregnancy or a pregnancy-related illness during the protected period – from the beginning of pregnancy to the end of maternity leave.

However, it is clear from the legislation that a woman has to be pregnant to have the protection, and therefore an employee undergoing fertility treatment is only protected against pregnancy discrimination once she is deemed to be pregnant. This means that a woman could only claim protection at the final stage of IVF process – egg implantation – and would have no other protection prior to this, during any hormonal treatment, egg retrieval or fertilisation.

Two cases

If a woman is dismissed or disadvantaged because she is going through IVF but is not yet pregnant, while she would not have a claim for pregnancy and maternity discrimination, she is likely to have a sex discrimination claim if she is treated less favourably than a man, or than a man would have been treated.

There have been two employment tribunal cases in recent years which relate to women who have been unfairly treated while undergoing IVF. The first of these is Karavadra v BJ Cheese Packaging Ltd (1305782/2018), which held that where an employee was dismissed following time off for successful fertility treatment, the dismissal was because of her pregnancy. The claimant commenced IVF treatment on 25 May 2018 and, prior to her treatment starting, agreed with her employer that she would take one month of annual leave at the appropriate time in order to rest, so that she could avoid a further miscarriage. She discovered that she was pregnant and requested some further time off, which was granted. She contacted her employer to confirm her return to work, and informed them that she was pregnant. One of the directors encouraged her to take a few months off work, but she confirmed she wanted to return. On her return, the other director informed her that he did not approve her period of leave, and was unaware that this had been granted. She was dismissed, with a dismissal date backdated to July.

The employment tribunal held that the claimant had been automatically unfairly dismissed from her employment as she had been dismissed for the sole or principal reason that she was pregnant. The ET also held that the claimant had been treated unfavourably because of her pregnancy in being dismissed, not being paid her wages, and not being paid her notice pay. The claimant was awarded compensation of just over £21,000.

The second case is Ginger v Department for Work & Pensions (3401940/2015), where the ET found that the DWP had discriminated against a female employee when a colleague asked her whether she could cope with a second child and when she was refused leave to take further IVF treatment. She was awarded more than £22,000 due to injury to feelings and financial losses.

These cases show the care that employers ought to be taking when considering employees going through fertility processes, and the sensitivities surrounding these. The Equality & Human Rights Commission Code of Practice recommends that employers treat requests for time off for IVF treatment “sympathetically”, and that employers establish procedures for allowing time off for IVF and fertility treatment. Some employees feel that they need to conceal the fact that they are having fertility treatment from their employer due to concerns that they may be discriminated against, and, just like many once controversial employment subjects, the more open conversations are, the more likely they are to become the norm.

Policy: be proactive

Action group Fertility Matters at Work has urged employers not to wait until the bill progresses through Parliament, or indeed even if it is not passed, before they take action. Having a written policy on fertility and the issues which can arise undoubtedly gives an employer the opportunity to show its understanding of fertility in the workplace, while maintaining employee expectations on the support which is available. It would also remove any uncertainty employees may have about how an employer will address such issues at work and what employees should do to access support. A package of measures can include rights to time off work for both parties to the treatment as well as support if the treatment isn’t successful and miscarriage occurs. While this policy would be separate to any pregnancy and maternity policy, it would dovetail with the contents of such, as well as fall in line with any policies of equality and diversity.

A fertility policy ideally should be written with specialist understanding about fertility treatments and potential legal issues, and should be inclusive to all employees, not just heterosexual couples.

Employers of choice want to be at the forefront of offering the very best support to their employees in all areas, and having a full package of policies and practices supporting parents will make employers more appealing to current and future members of staff, meaning that, regardless of the success or otherwise of the bill, employers are taking a proactive approach on the importance of this issue to their employees.