Fertility treatment and the workplace

There are 3.5 million people struggling to conceive, according to an MP who is sponsoring a Private Members Bill to provide support in the workplace and who has highlighted the difficulties experienced by employees with fertility issues. We take a look at the legal and practical issues arising in the workplace in connection with employees undergoing fertility treatment.

The report by the Women’s Health Strategy for England in April 2022 following its call for evidence highlighted concerns. These included the concern that many employers do not recognise infertility as a genuine medical issue and don’t understand the physical, mental and financial strain on those going through treatment. In addition, many employees are reluctant to tell their employers they want to start a family for fear they will be overlooked for promotion, removed from projects or made redundant, while more than a third have considered resigning.

Fertility treatment covers in vitro fertilisation (IVF), intrauterine insemination (IUI) as well as other treatment in connection with preserving fertility (e.g. freezing eggs, sperm or embryos) also referred to as assisted conception.

Do employees have a statutory right to time off for fertility treatment?

There is currently no statutory right to time off for IVF, yet it can involve frequent medical appointments. IVF does not fall within the scope of provisions for antenatal appointments until a fertilised ovum has been implanted. Similarly, there is no right to time off for other types of fertility treatment including IUI.

The Equality and Human Rights Commission Code of practice recommends that employers treat requests for time off “sympathetically” and suggests that employers may wish to establish procedures for allowing time off for IVF and fertility treatment including annual or unpaid leave.

The Fertility Treatment (Employment Rights) Bill currently going through Parliament requires employers to allow employees to take paid time off from work for appointments in the early stages of fertility treatment and provides for protection against detrimental treatment for exercising the right.

Fertility treatment and employment tribunal claims

Although there is no specific statutory employment protection in relation to fertility treatment in workplaces in England and Wales, there are a number of potential claims an employee may have including:

Sex discrimination and IVF

• Employers who refuse an employee’s request for leave to undergo IVF treatment may be at risk of claims of direct sex discrimination. In Ginger v DWP Ms Ginger had informed her employer she would need time off at short notice to go to an IVF treatment appointment. Her employer made comments about her ability to cope with a second child and questioned her decision to have IVF treatment. They subsequently refused her time off citing insufficient notice, staff training and other business reasons. However, a tribunal found that she had been directly discriminated against as a man would not have had the same comments made and any request for leave would have been considered more carefully.
• A refusal to allow time off to attend an assisted conception appointment may also be indirect sex discrimination. It is likely to be relatively easy to show that women are put at a particular disadvantage as fertility treatments are generally more invasive and more involved for women, necessitating a greater amount of time off over a longer period of time.
• In Mayr v Backerei the ECJ held that a woman undergoing IVF treatment is protected from sex discrimination from the time the ova are collected until the implantation of a fertilised ovum in the uterus immediately after fertilisation. There is no requirement for a male comparator at this stage of the treatment. The EAT followed this decision in Sahota v Home Office.

Pregnancy and maternity discrimination

• Once a fertilised ovum is implanted, the employee is pregnant, and this starts a protected period for purposes of pregnancy and maternity discrimination legislation.
• An employee is still protected from pregnancy discrimination for 2 weeks after finding out that any embryo transfer was unsuccessful.

Other potential claims

Although there is no specific protection in connection with fertility treatment/assisted conception, employers should be aware that, depending on the circumstances, employees may still be protected by sex discrimination, unfair dismissal, constructive dismissal and sexual harassment laws.

What support in the workplace can employers provide for employees who are going through fertility treatment?

In a survey during Fertility Awareness Week in 2022 a report found that over half of employees who have fertility issues, or who are going through fertility treatment, don’t receive support that they need from their employers.

In addition to providing for time off as outlined above, other support employers can offer includes:

• provision of fridge for storing medication;
• a quiet place to inject;
• flexibility to take last-minute calls from their clinic confidentially; and
• considerations for partners of those undergoing fertility treatment.

Employers should ensure that fertility treatment does not adversely affect any decision on promotion, training or restructuring.

IVF and assisted conception policy/Fertility policy

Employers may wish to put in place a policy to help employees understand the paid and unpaid time off they can take in relation to assisted conception treatment, including for those accompanying a person receiving fertility treatment.

Other matters to consider covering in a policy include:

• the option to work flexibly on a temporary rather than permanent basis; and
• the ability to notify designated members of staff on a confidential basis that they are having treatment.

Unfortunately, IVF is frequently unsuccessful. Some employers are introducing policies that include provision for time off in the event of unsuccessful fertility treatment in recognition of the distress this may have caused.

Other related issues include how sickness caused by the side effects will be treated and whether sickness absence relating to IUI or IVF treatment will be recorded separately from other sickness absence and disregarded in any future employment-related decisions.

Training for managers

Line managers are likely to need training to understand the matters which can arise in connection with fertility issues and treatment within the workplace so that they can respond in a way that is sensitive and supportive of employees.

Our expertise

We advise on all aspects of employment law including cases involving fertility treatment and advice on developing a policy for your organisation to support employees in the workplace undergoing fertility treatment. We use our exceptional breadth and depth of expertise to give clients personalised advice to help them manage risks and resolve issues.

Please contact Anne-Marie Balfour, Legal Director, or your usual Charles Russell Speechlys contact if you would like to get in touch.