It is estimated that approximately one in seven couples may find it difficult to conceive. This may leave some couples with no other choice but to seek alternative options, such as IVF treatment.

In light of this, we explore employers’ obligations and the legal protections extended to employees undergoing IVF treatment.

Protection from discrimination

Pregnancy and maternity are “protected characteristics” under the Equality Act 2010.

This means it is unlawful for an employer to treat someone less favourably because she is pregnant, suffering a pregnancy related illness, on compulsory maternity leave or exercising or seeking to exercise any of her statutory rights, such as ordinary and additional maternity leave.

In general, the protection from pregnancy and maternity discrimination for employees covers the whole “protected period”, which is from the start of the woman’s pregnancy to the end of her maternity leave.

In cases involving IVF treatment, a woman is considered to be pregnant once implantation has occurred. This means that if a woman is in the early stages of the IVF process, for example, undertaking hormone treatment, they are not protected against pregnancy discrimination.

A pregnancy test is typically taken two weeks after implantation.

• If the IVF succeeds, she is protected against pregnancy discrimination until the end of her maternity period.
• If the IVF fails, she will be protected two weeks after the end of the pregnancy.

Leave

As the law currently stands, employees do not have a statutory right to time off to undergo IVF treatment. However, the Equality and Human Rights Commission Code does recommend that employers treat employees’ requests for leave for IVF treatment sympathetically.

You will need to consider your company’s approach to time off for medical appointments. In your policy, you may offer employees paid time off or unpaid leave, or insist they take annual leave or perhaps a mixture of different types of leave. Whatever approach you take, you must be consistent. If you allow paid time off for certain treatments for men, but do not allow paid time off for women seeking IVF treatment, you could face claims of sex discrimination.

Once the employee is pregnant, they are entitled to antenatal appointments. Pregnant employees have the right to reasonable time off to attend antenatal care appointments made on the advice of a registered medical practitioner. They are entitled to be paid their normal hourly rate for the entire duration of the time off necessary to attend the antenatal appointment.

Discussions surrounding IVF treatment

Talking about infertility can be extremely delicate and stressful for all parties concerned, therefore make sure that conversations of this nature are dealt with confidentiality and sensitivity.

If you would like to discuss this matter further, contact your Employer Law Adviser for guidance.