Since the Human Fertilisation and Embryology Authority started recording information in 1991, around 390,000 babies have been born via in vitro fertilisation (“IVF”) or donor insemination. Historically a taboo subject, it is (quite rightly) more acceptable than ever for couples to seek medical assistance with conceiving. However, employers and employees often have very little understanding of how UK employment and equalities law applies to individuals undergoing IVF treatment.
What are my rights?
The default position is that employees have no statutory entitlement to paid time off to undergo fertility treatment. Time off for this reason does not fall within the scope of ante-natal appointments -which pregnant women do have the statutory right to take time off for- because the law does not treat an employee as being pregnant by way of IVF unless a fertilized egg has been implanted in their womb. This is one of the last stages of the IVF process and comes after various stages of assessment and initial treatment. Once this step has been completed, the employee will be entitled to attend antenatal appointments in the same way as someone who becomes pregnant by other means.
The Equality and Human Rights Commission’s Employment Statutory Code of Practice states that it is good practice for employers to treat any request for time off for IVF (or other types of fertility treatment) sympathetically, and advises employers to consider adopting a policy/procedure to cover these circumstances. Some organisations are beginning to offer paid leave of this kind as a contractual benefit or looking at adopting fertility policies, but this practice is far from widespread at present. As such, most employees wishing to take time off to receive fertility treatment would need to use ordinary annual leave or take leave without pay, with the consent of their employer.
Similarly, there is no statutory right for an employee to take paid leave in order to accompany their partner to fertility appointments, and an individual wishing to do so would also need to take annual leave or unpaid leave, again after obtaining agreement from their employer.
Employees who are unwell as a result of their fertility treatment have the right to take paid sick leave in the same way as if they are unwell for any other reason, and subject to the same statutory and contractual reporting requirements. There is no specific right in relation to sick leave arising from IVF treatment.
How am I protected?
The cases of Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG (in the European Court of Justice) and Sahota v Home Office and Pipkin (in the UK Employment Appeal Tribunal) established that individuals undergoing IVF treatment will be protected from discrimination on the basis of a) their sex and b) their pregnancy and maternity. Which protection applies in each case will depend on what stage of their IVF process an individual has reached at the relevant time.
Sex discrimination
A woman undergoing IVF treatment will be protected against discrimination on the basis of her sex from the time when her eggs are collected until the implantation of fertilized eggs in her uterus, immediately after fertilization. If a woman is treated less favourably during this period as a result of her IVF treatment, she will be able to claim that she has been discriminated against because of her sex.
Whilst there is no specific case law or statutory guidance on the subject, it appears to be arguable that this protection would also extend in practice to transgender men who choose to undergo IVF treatment.
Pregnancy and maternity discrimination
Once fertilised eggs are implanted in an individual’s uterus, that person is deemed to be pregnant. This triggers the start of the “protected period” for the purposes of pregnancy and maternity discrimination. If during this period an employee is treated unfavourably because of their pregnancy, they will be able to claim that they have been discriminated against because of their pregnancy or maternity, in the same way as an individual who becomes pregnant by means other than IVF.
This protection will end either:
If the IVF process is successful
If the IVF process fails
Future reform?
As set out above, whilst more organisations are starting to think more about introducing policies around IVF and other fertility and family-related matters, there is still a long way to go for those undergoing IVF treatment to benefit from the same rights that apply once an individual is pregnant. Given the increasing visibility of those who struggle with fertility issues in the media and public discourse more generally and the lessening of the historic social taboo around these matters, it is possible that Parliament will come under greater pressure to act to extend more rights and protections to those undergoing IVF treatment.
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