IVF and the Law

To what extent are employees undergoing IVF treatment protected by the law? Sarah James analyses the key cases and explains why now is a good time for local authorities to consider their approach.

Thirty-five years after the Sex Discrimination Act came into force, it is an uncontroversial fact that discrimination on the grounds of pregnancy is unlawful and constitutes less favourable treatment on the grounds of sex. However, until quite recently the courts and/or Parliament had not considered whether this protection extended to discrimination on the grounds of IVF treatment.

Section 3A of the Sex Discrimination Act 1975 offers protection against discrimination on the grounds of pregnancy. The section allows for protection from the time the employee becomes pregnant until the end of her entitlement to ordinary maternity leave, or where a pregnancy ends before the entitlement to ordinary maternity leave, for a period up until two weeks from the end of the pregnancy.

However, IVF treatment obviously begins before the pregnancy, so section 3A seems to offer no additional protection. The European Court of Justice and the Employment Appeal Tribunal (EAT) have both had to consider the application of section 3A and the wider issues arising from employees undergoing in vitro fertilisation (IVF) treatment.

In the case of Mayr v Backerei und Konditorei Gerhard Flockner OHG C-506/06 [2008] IRLR 387, the European Court of Justice (ECJ) considered the case of an employee who was undergoing IVF treatment, having been dismissed by her employer. The ECJ took the opportunity to restate the general principle that dismissal on the grounds of pregnancy, which affected only women, would be direct sex discrimination.

In considering the nature and effect of IVF, the ECJ stated that a woman should be regarded as pregnant when in vitro fertilised eggs are transferred into her uterus and that when a woman is on sick leave in connection with an advanced stage of IVF treatment (which in itself could only affect a woman, namely the implantation of fertilised eggs,) then a dismissal based on that absence would be direct sex discrimination.

This decision was endorsed by the EAT in Sahota v Home Office and Pipkin UKEAT/0342/09, meaning that a woman undergoing IVF treatment will receive protection against less favourable treatment from the point immediately before the implantation stage, and if successful will remain protected until the end of ordinary maternity leave entitlement. If the treatment is unsuccessful then she remains protected for a period of two weeks from confirmation of that fact.

This means that women in the later stages of IVF are protected against discrimination. These provisions do not however grant them any right to time off to have the IVF treatment in the first place, and it is very often a lengthy and expensive process. Women undergoing IVF treatment may well not be able to afford to take unpaid time off work.

Are women undergoing IVF treatment entitled to paid time off work?

There is no statutory right for an employee to take time off from work in respect of infertility investigations and treatment. Time off for IVF medical appointments should be treated no differently from any other medical appointment but because a woman who is absent when undergoing IVF treatment may not be too ill to be capable of doing her job, she will not be entitled to statutory sick pay and any pay for missed work will be solely at the employer’s discretion.

Unless the employment contract states otherwise, only when a woman has become ill as a result of any such treatment will she be entitled to any sickness benefits. However, that is as far as the protection for those undergoing IVF treatment goes, which means that if women at work wish to undergo such treatment then they must use holiday entitlement.

IVF absence policies

As this use of holiday can feel at odds with the stance taken by many employers with regard to equality and family-friendly working practices, some organisations are introducing special provisions to cover what is an increasing issue – recent statistics show that around 1 in every 80 babies born in the UK was conceived through IVF.

For example, ASDA allows up to three periods of paid leave for IVF, of up to five days per cycle for women and one day for men.

This may not be a suitable approach for every employer, but a degree of sensitivity and flexibility is required, and employers may wish to consider setting out in writing what their approach to the situation will be.

As many local authorities will already be considering the drafting of Single Equality Duty documents, in advance of the relevant provisions of the Equality Act coming into force, it may well be a good time to look at this issue.

Sarah James is a lawyer in the employment team at Dickinson Dees (www.dickinsondees.com).