Fertility treatment and the law and how to support employees undergoing fertility treatment

In the UK there is currently no specific legislation providing protection for workers undertaking fertility treatment. So workers must rely on the current provisions in the Equality Act 2010, which prevent workers from being discriminated against on the grounds of certain protected characteristics. The protected characteristics most likely to be engaged for workers undertaking fertility treatment are pregnancy, age and sex.

We know that there is no specific statutory right to time off for IVF treatment as it does not fall within the scope of ante-natal appointments, or at least not at a point when the worker is not pregnant.

The key question then in terms of pregnancy discrimination and women going through IVF treatment is at what stage is the woman considered pregnant? Helpfully there is case law that answers this, which confirms that a woman going through IVF treatment is considered pregnant at the final stage of the IVF process, which is the point when the fertilised ova is implanted into the woman. From this stage, if the IVF is successful the woman will have the usual protection against pregnancy discrimination and will benefit from the usual pregnancy and maternity rights. However, if the IVF is sadly unsuccessful, the woman will only have the protection against pregnancy discrimination for two weeks after finding out that the implantation of the fertilised ova has not been successful.

Whilst protection from pregnancy discrimination is only available at the very end of IVF treatment, women will be protected against discrimination on the grounds of their sex from the time of the follicular puncture (when the ova are collected) until the implantation of fertilised ova in the uterus immediately after fertilisation.  An employer that treats an employee less favourably during this time because she is undergoing IVF treatment will have discriminated against her because of sex.

On the other hand, if a business was to treat a woman less favourably because she merely indicates that she intends to become pregnant via IVF this could give rise to a claim for sex and/ or age discrimination on the basis that IVF can only be undertaken by women and is more likely to apply to older women than younger women.

This is the current legal position, however, the Fertility Treatment (Employment Rights) Bill is making its way through Parliament and if implemented will provide specific laws for employees undertaking fertility treatment. Its aim is to make there a right to paid time off for employees undergoing fertility treatment to attend fertility appointments and for their partners to take unpaid time off to attend these appointments. This is akin to the rights that pregnant employees and their partners have to time off for antenatal appointments. If passed the bill will also introduce laws protecting employees from being subject to a detriment for taking time off for fertility treatment. It is expected that the second stage of this bill will have its reading in the House of Commons on the 24^th November 2023, however, this date will change as the House of Commons aren’t scheduled to be sitting on this day. It will therefore likely be 2024 before a final decision is made on this legislation.

Despite this the proposed new legislation has without a doubt helped to raise awareness for the issues experienced by employees undertaking fertility treatment. There have sadly been stories of employees feeling they can’t reach out to anybody in their organisation about what they are going through and so resorting to injecting themselves in undignified places at their workplace and then using their holiday or taking sick leave to attend fertility appointments, recover from side-effects and to process unsuccessful attempts.

Some large organisations have publicised their policies on supporting staff undertaking fertility treatment with some offering paid time off to attend fertility appointments already and offering free access to counselling for staff that may need it. Some have even gone as far as financially supporting staff to pay for the cost of fertility treatment. Whilst this won’t be an option for all businesses, it is important that all businesses consider their current approach to this issue and how they can further support their staff. Not only will this aid staff, but it will also help to encourage retention levels, reduce sickness absence and create a more productive workforce.

We therefore suggest that in the first instance businesses consider:

• Having a fertility policy. This will help to create an open culture about fertility treatment where employees feel they are able to reach out for support when needed. The policy should set out the business’ approach to fertility treatment, including their position on time off for appointments, sick leave and the support available for staff.
• Staff training. Managers would benefit from training to help them deal with difficult and sensitive conversations they may need to have with their staff on this topic. As well as how to deal with any recruitment, redundancy or performance process for employees they know to be undergoing fertility treatment.
• Flexible working. Consider whether you can allow employees undergoing fertility treatment to work from home and possibly even different hours to work around their appointments.
• Raise awareness. Having a fertility policy and staff training will help to raise awareness of fertility treatment, what it is and the impact on those undergoing it. However, having general communications about what fertility treatment is, assuring staff they will be supported and signposting fertility charities and support will also help to do this.

If your business wants to understand how it can support its employees undertaking fertility treatment, or could benefit from advice on a particular situation, please contact Claire Treacy.