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Women's rights at work when undergoing IVF treatment

Needle fertilising an eggAccording to statistics from the Human Fertilisation and Embryology Authority (HFEA), almost 53,000 people underwent 69,000 egg transfers in the UK throughout the year 2019 alone. That’s a lot of people, but what a lot of those people don’t realise at first is that under current UK law, an employee has no pregnancy rights when undergoing IVF until the very last stage of the IVF process - which is the part the involves the fertilised egg being transferred to the female’s uterus.

Will IVF law in the workplace change?

Some MP’s, such as Nickie Aiken, a Conservative Party MP for the cities of London and Westminster, believe that employee’s undergoing IVF treatment are facing discrimination under the existing UK laws and are even losing their jobs as a result of wanting to try for a baby through the treatment.

For this reason, Aiken argues that it’s time for workplace protection to be improved for these individuals undergoing IVF.

To back up her argument, Aiken claims that the improvements should be made based on the fact that:

  1. The IVF process actually begins several stages before the point at which the fertilised egg is transferred to the female’s uterus.
  2. The steps before reaching the final stage involves supressing the female’s natural menstrual cycle, hormone treatment, egg collection and embryo transfer, blood tests and scans, which can all lead to the female experiencing side effects.

ACAS state that employers should view IVF appointments in the same way they view any other medical appointment, though there is no current legal requirement for employer’s to do so. Due to those undergoing IVF not being pregnant, this means they also have no entitlement to time off work for antenatal appointments.

This has resulted in many employers choosing to not offer time off work for those who are undergoing IVF treatment, leaving their employee’s with no choice but to use their annual leave allowance to take time away from work to attend these appointments.

Read: Common questions about contract of employment

Is there anything employers can learn from this?

Of course, while no law exists for an employee to be granted time off work to attend IVF appointments, employers are under no obligation to offer any form of support with time off regardless of whether they feel time away from work would be detrimental to the business or not.

However, employers can consider their working relationship with the employee and recognise that fertility treatment can be a stressful and lengthy process, therefore respectfully supporting their employee where possible would certainly be appreciated and could go a long way towards avoiding even more added stress.

Considering the guidance of ACAS, employers could potentially compromise by offering employee’s undergoing IVF treatment flexible working hours or paid or unpaid time off work to allow them to attend IVF appointments without feeling too heavily penalised from their workplace.

The threat of discrimination claims

The Equality and Human Rights Commission (ECHR) also outlines guidance in its Employment Statutory Code of Practice:

“In responding to requests for time off from a woman undergoing IVF, an employer must not treat her less favourably than they treat, or would treat, a man in a similar situation as this could amount to sex discrimination.

After a fertilised embryo has been implanted, a woman is legally pregnant and from that point is protected from unfavourable treatment because of her pregnancy, including pregnancy related sickness. She would also be entitled to time off for antenatal care.

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 allowing women to take annual leave or unpaid leave when receiving treatment and designating a member of staff whom they can inform on a confidential basis that that they are undergoing treatment.”

Regardless of whether or not new laws are introduced to protect employees undergoing IVF treatment, employers must be careful to ensure that failing to implement recommended practices doesn’t lead to potential claims of discrimination.

Read: What are employees entitled to in the workplace?

Here at Fonseca Law our solicitors are experts in all aspects of employment law. To speak to our legal time about your case, or to learn more about our wide range of other legal services, don’t hesitate to get in touch with us by calling 01495 303124, e-mailing or by completing our simple online contact form.