The latest statistics suggest one in six couples experience infertility and in 2019 alone, more than 53,000 patients underwent around 69,000 egg transfers in the UK. Whilst we await the latest data, this upward trend means it is increasingly likely that employers will be faced with requests for work absences from employees seeking to undergo fertility treatment and employees facing physical and mental issues associated with their fertility journey.
In this article, employment partners Michelle Last and Julie Morris explain the current rights for employees undergoing fertility treatment and why it is important for employers to understand their obligations in order to be able to handle requests sensitively.
What employment rights do employees have when undergoing fertility treatment?
At present, there is no statutory entitlement to time off to undergo fertility treatment.
If an employee requires time off for fertility treatment, they will need to take annual leave unless their employer agrees to grant special or unpaid leave. They are not entitled to sick leave as such, as simply put, they are not sick. However, in practice, some employees may have had to call in sick to be able to get the time off.
How does this work in situations where the employee is sick as a result of a fertility treatment?
If an employee is unwell as a result of fertility treatment, the employee may be able to take sick leave but, in those cases, the employee will be required to comply with the relevant sickness absence reporting requirements to qualify for company and statutory sick pay.
How should employers handle requests for time off for fertility treatment?
The Equality and Human Rights Commission Code of Practice recommends that employers treat requests for time off for IVF treatment “sympathetically” and recommends that employers establish procedures for allowing time off for IVF and fertility treatment.
How might the lack of a right to time off for treatment impact employees in the workplace?
Employees undergoing fertility treatment are under huge amounts of pressure emotionally, physically and financially. They may not want to share this with their family, let alone their manager.
Secondly, 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.
What does the law say in relation to partners?
When a woman is pregnant, the partner has the right to time off work to accompany their pregnant partner to antenatal appointments. But because there is no statutory right to time off work for fertility treatment, the partner will not automatically have the same right to accompany their partner to fertility treatment appointments.
What protections are available to women and their partners undergoing IVF treatment under the Equality Act 2010?
There is currently no specific protection for women undergoing IVF treatment or their partners. Infertility is not a disability for Equality Act purposes. Pregnancy and maternity are protected characteristics covered by section 4 of the Equality Act 2010.
Pursuant to section 18 of the Equality Act 2010, 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 against pregnancy discrimination and therefore an employee undergoing fertility treatment is only protected against pregnancy discrimination once she is deemed to be pregnant.
Sex discrimination claims
If a woman is dismissed or disadvantaged because they are going through IVF but not yet pregnant, whilst they will not have a claim for pregnancy and maternity discrimination, they are likely to have a sex discrimination claim if they were treated less favourably than a man, or than a man would have been treated.
Fertility treatment and case law
A recent employment tribunal case, Karavadra v BJ Cheese Packaging Ltd, held that where an employee was dismissed following time off for successful fertility treatment, the dismissal was because of her pregnancy. Therefore, if an employer dismisses an employee after granting her time off work for fertility treatment, the tribunal will most likely take a dim view of this in the absence of any fair reason for dismissal.
What sort of measures can employers put in place to help to support its employees going through treatment?
Having a written policy on fertility and the issues which can arise undoubtably gives an employer the opportunity to show its understanding of fertility in the workplace, whilst 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, egg freezing and HR support on a confidential basis.
A fertility policy ideally should be written with specialist understanding about fertility treatments and potential legal issues. It should also not assume it applies only to men and women in heterosexual couples.
Another measure is a Fertility Awareness Course for HR Managers which can be immensely beneficial. Although there are a lot of resources available on the internet, nothing beats hands-on training from employment experts. If more employers were made aware of the potential issues arising from their employees undergoing fertility treatment, more companies would adopt written policies.
Progressive employers want to be at the forefront of offering the very best support to their employees and no doubt this will ultimately be reflected in their recruitment and retention effectiveness.
The more flexibility an employer can offer, the less disruption there may be with unplanned absences and potential mental health issues.
Many companies now recognise this and are allowing their employees time off for fertility treatment. Some offer unlimited leave, whilst others give a set number of days with the option of additional unpaid leave and flexible working. Those who have adopted such policies say employees have responded very positively and responsibly. They have found it generates goodwill which helps foster a happy workforce, and this in turn improves productivity and builds good customer relations.
An employee in a supportive environment in a difficult time in their life, is much more likely to want to remain with the employer longer term, which will reap rewards in terms of diversity and retention.
by Michelle Last & Julie Morris