It is estimated that 3.5 million people in the UK have problems conceiving. National fertility awareness week, which runs from 31 October 2022 until 4 November 2022, aims to raise awareness of the issue and support those people going through it. It's therefore an opportune time for employers to think about whether they should provide some support to staff.
People will usually have to go through a number of tests before they are offered in vitro fertilisation (IVF). It involves a number of stages: suppressing the natural menstrual cycle, surgical removal of the eggs, the fertilisation of one of more of the eggs and transferring the embryo into the uterus.
The IVF success rate has tripled over the last 20 years in the UK, with almost a third of all embryo transfers in women under 35 resulting in a baby. But patients in parts of England are finding it increasingly difficult to access NHS funding for infertility treatment due to pressure on budgets. And, although UK guidelines say that women under 43 should be offered IVF it is down to local integrated care boards to decide who is eligible. Those who can afford it, often chose to pay privately.
Do employees have a legal right to take time off for IVF treatment?
IVF treatment is demanding and involves daily medication and frequent appointments. Despite this, employees don't have a legal right to take time off work for fertility treatment. Those people who can work flexibly may be able to juggle their work commitments around their medical appointments (or if they qualify, make a flexible working application to make this possible). Some employers also allow staff to attend a reasonable number of medical appointments in work hours provided they make up the time. But, many employees have to use their annual leave to take time off.
It's possible that will change. Nickie Aiken, a Conservative MP recently introduced the Fertility Treatment (Employment Rights) Bill in the House of Commons which would give employees the legal right to take time off work to attend appointments for fertility treatment. The Bill has passed its first reading and the second is scheduled to take place on 25 November 2022. We don't yet know if the government is likely to support it; if it doesn't, it's unlikely to become law.
Are employees entitled to sick pay if the treatment makes them ill?
IVF can make women nauseous, tired and irritable. They may also become depressed and anxious. If they are too ill to work, you should treat their absence in the same way as you would treat any other member of staff. This means that you should not ask them for a doctor's note if their illness lasts for seven days or less as this could amount to less favourable treatment.
You should pay the employee any contractual sick pay due to them and/or SSP (subject to them meeting the qualifying conditions).
At what stage does pregnancy start for someone undergoing IVF?
A woman is deemed to be pregnant once the embryo is transferred into her body. From this point, she is protected from pregnancy and maternity related discrimination, if her employer knew or should have known that she might be pregnant. Section 18 of the Equality Act 2010 provides that unfavourable treatment of a woman at work during the 'protected period' because of their pregnancy, or because of illness suffered by them as a result of pregnancy, constitutes pregnancy discrimination.
An employee might inform her employer that she is pregnant once the embryo is transferred or wait until she knows that the process has been successful. The only legal duty she owes to her employer is to inform them that she is pregnant no later than the 15th week before their baby is due.
If the procedure is unsuccessful, the employee will continue to be protected under s.18 from pregnancy discrimination for two weeks after until she discovers she is no longer pregnant.
If the embryo transfer is successful and the employee is pregnant, she will continue to have the same rights throughout the pregnancy and maternity as any other pregnant woman. This includes the right to take paid time off to receive antenatal care.
Do women have any rights before they become pregnant?
There is no specific protection for women undergoing IVF treatment (or for their partners) and infertility is not a disability under the Equality Act 2010. Protection against pregnancy and maternity discrimination under the Equality Act 2010 only begins when pregnancy occurs (or is deemed to have occurred in the case of IVF).
However, this doesn't mean that women don't have any rights. For example, they may be able to bring a claim for direct sex discrimination if you turn down their request to take time off to attend IVF medical appointments, in circumstances where you treat (or would treat) a male employee more favourably. The EHCR Code of Practice gives the following example:
'Recently an employer agreed, as a one-off request, a week’s annual leave for a male worker who wanted to undergo cosmetic dental surgery. Two months later, one of his female colleagues asks if she can take a week’s annual leave to undergo IVF treatment. The employer refuses this request, even though the worker still has two weeks leave due to her. She may be able show that the employer’s refusal to grant her request for annual leave for IVF treatment amounts to sex discrimination, by comparing her treatment to that of her male colleague.'
However, the EAT in Sahota v Home Office and Pipkin  said that it wasn't always necessary for a woman to find a male comparator to bring a sex discrimination claim. It said that from the point a woman's eggs are removed (ie. before they are fertilised or implanted) she would be able to bring a claim for less-favourable treatment on the basis of her sex without having to point to male comparator (real or hypothetical) because only women can have their eggs removed.
A woman who is dismissed for undergoing IVF treatment (prior to the implantation stage) will also be able to argue that her dismissal was unfair under the ‘ordinary’ unfair dismissal principles set out in s.98 of the Employment Rights Act 1996.
Are many organisations supporting staff going through IVF?
Many large employers are starting to offer support and have expanded their employee benefits platforms to include fertility treatment in an attempt to retain and attract skilled staff.
LinkedIn was one of the first large corporations in the UK to offer fertility benefits by reimbursing up to £21,000 towards IVF or adoption expenses. Clifford Chance (a law firm) provides up to £15,000 for fertility investigations and treatments and accounting giant PWC announced that they will give their employees eight days of paid annual leave for fertility consultations and appointments. Today the Co-op announced that it has introduced a fertility policy to its 60,000 strong workforce. It will provide paid leave for up to 10 appointments per cycle and for up to three cycles of fertility treatment. Our policy gives employees up to 35 hours paid time off in any 12 months.
Tips and advice for employers
Infertility affects women and men in different ways and to different degrees. It can have a significant emotional, physical and financial toll and it could impact an employee's performance and overall wellbeing. It therefore makes sense to support your staff through this process. That doesn't mean that you have to throw lots of money at the issue. There are several inexpensive steps that you can take including:
1. Offering support
Guidance from the EHRC Code of Practice suggests “it is good practice for employers to treat sympathetically any request for time off for IVF or other fertility treatment and consider adopting a procedure to cover this situation”. This could include designating a member of staff whom they can inform on a confidential basis that they are undergoing treatment.
You could also extend your Employee Assistance programme to include people undergoing IVF so that they can speak to someone externally for support.
2. Raising awareness
IVF should not be a taboo topic and, if employees want to, they should feel able to discuss it in the same way as they would any other health problems. You can help raise awareness by holding internal presentations or workshops and provide training for managers about how to manage staff undergoing treatment. It is important for your managers to understand the legal implications at each stage of the IVF process to avoid any sex or pregnancy related discrimination claims.
3. Being flexible
If an employee tells you that they are undergoing IVF and need to take odd days off work, consider how best to manage this. Can they work flexibly for a short time to make up the time they miss attending appointments? If they are using their holiday allowance, will they have enough time left over to take a proper break from work? Are there any other options you can offer them such as unpaid leave or the ability to purchase extra holiday?
4. Adopting a policy
If you have a policy which signposts the support you offer, your staff are more likely to be open with you about their treatment, and any problems they're having which might be impacting on their wellbeing or performance. A clear policy will also help your managers apply the rules consistently and can help to manage employees' expectations.
How we can help
If you would like us to review any policies or draft an IVF and fertility treatment policy for you, please speak to Glenn Hayes.
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