Background
Infertility affects one in seven couples in the UK. According to the Human Fertilisation and Embryology Authority 39,879 women underwent IVF treatment in 2008. There are a number of treatments for infertility depending on the causes. One of the most common is In Vitro Fertilisation (IVF). This involves the removal of eggs from the woman, fertilisation of the eggs and the implanting of the resulting embryo in the woman’s uterus.
Courses of IVF typically take four to six weeks and can involve a number of potentially serious complications including adverse and potentially dangerous reactions to hormone treatment or fertility drugs, miscarriages, ectopic pregnancies and multiple births. Infertility treatment is stressful and potentially traumatic and many employees will be loath to even inform their employer that they are undergoing such treatment.
Legal protection
Whilst the cause of infertility may affect either the man or the woman the IVF treatment much more profoundly affects the woman. Pregnant women have particular protection in the workplace and this applies to women who become pregnant via IVF. The position of women undergoing IVF but who are not yet pregnant is less clear cut.
Section 18 Equality Act 2010 prohibits less favourable treatment by an employer from the time the employee becomes pregnant to the end of her maternity leave, “the protected period”. If the pregnancy ends before the employee can take maternity leave the protected period ends two weeks after the end of the pregnancy.
The European Court of Justice looked at the law relating to a dismissal of an employee undergoing IVF in Mayr v Backerei und konditorei Gerhard Flockner (2008). It found that:
- Male and female workers are equally liable to sickness absence. If a woman is dismissed for sickness absence in circumstances where a man would have been dismissed there is no sex discrimination;
- A dismissal because a woman is pregnant or for a reason connected with her pregnancy can only apply to a woman and is direct sex discrimination;
- A woman undergoing IVF should be considered to be pregnant when fertilised eggs are transferred to her uterus;
- A woman on sick leave because of the advanced stages of IVF treatment is absent for a reason that only affects women. Dismissing a woman “essentially because she was undergoing an important stage of her in vitro fertilisation treatment” was direct sex discrimination.
The EAT followed the ECJ’s guidance in Sahota v Home office and Pipkin (2009).
The effect of the Equality Act and the decision in Mayr is that women undergoing IVF have protection from the point at which they are undergoing the final stages of IVF treatment and will be considered to be pregnant from the moment the fertilised egg is implanted. If the treatment is successful she will be protected until the end of her maternity leave. If the treatment fails the woman’s protection ends two weeks after the end of the pregnancy. A pregnancy test is carried out two weeks after the eggs implanted. The woman is protected during that period and for two weeks following if the results of the test are negative.
There is no legal right for an employee to request time off for IVF treatment or for any other form of treatment for or investigation into infertility. Requests for time off should be treated in the same way that requests for time off for any other medical appointment. If this is something that frequently affects a particular employer, it may wish to have a policy to deal with such requests. Often, employers have guidelines to deal with time off to attend doctor or dental appointments, if this is the case employees seeking time off for fertility treatment should be treated no less favourably than employees seeking time off for other forms of ill-health.
An employee who needs time away from work because of ill health associated with fertility treatment is entitled to contractual or statutory sick pay in the normal way.
Policy
Having a policy relating to leave for fertility treatment has the advantage of ensuring consistency of approach for all employees and providing certainty for employees. Before creating any policy the employer should decide what approach it will take in relation to time off work and flexible working. It should consider the following:
- How much time off should be allowed for counselling and after treatment;
- Should any additional time off be limited
- Should time off be paid;
- How should requests for time off be dealt with and what documentation will be required to support the request;
- When will a request for time off be refused;
- Whether requests for temporary flexible working be considered during the course of treatment.
Many employees undergoing IVF treatment will wish to keep this information private. It is sensible for an employer to ensure that any procedure dealing with IVF absence makes it clear that any discussions on the matter will be dealt with in confidence.
If you wish to develop a specific policy to deal with absence in these circumstances please contact your HR Rely advisor.