In vitro fertilisation, commonly referred to as IVF is a medical technology available to individuals who are experiencing difficulties conceiving a child. In many cases, the IVF procedure will require multiple medical appointments, including pre-screening tests, before the eventual implantation takes place.
From your client’s perspective, there is no statutory right to provide staff with time off work to undergo fertility treatment. Therefore, your client can decide for themselves whether to let staff take additional unpaid leave or if they will need to use their annual leave entitlement to request time off for IVF purposes.
Having said this, the Equality and Human Rights Commission encourages employers to take a flexible approach to requests for time off for IVF treatment, therefore your client will be well served to treat these requests the same way they would any other doctor or dentist appointments.
When dealing with an employee undergoing IVF treatment it is essential that your client has a firm understanding of the risk of discrimination. Whilst an employee undergoing the early stages of IVF will not be considered pregnant under the Equality Act 2010, the European Court of Justice (ECJ) has previously ruled that treating a female employee unfavourably due to her IVF treatment may still qualify as sex discrimination.
It is also essential that your client understands that an employee will be considered pregnant, and therefore protected from detrimental treatment on this basis, once the implantation has occurred. This is the process by which the fertilised egg is placed in the employee’s womb.
Employees will retain this protected status up until the point that the IVF treatment has proven to be successful or unsuccessful. Individuals are typically told to complete a pregnancy test 2 weeks after the implantation to evidence this. If the treatment is a success, then the employee will continue to be protected against discrimination on these grounds up until the end of their maternity leave. However, if the treatment is unsuccessful then the protected period will only last for a further two weeks.
If your client’s employee becomes pregnant following IVF then they must make the relevant accommodations. This includes protecting the employee from discrimination or harassment at work, whilst also ensuring that any pregnancy-related sickness is discounted from absence measuring procedures. In addition, your client must ensure that they provide staff with the same rights to maternity leave and pay as other pregnant employees, whilst also ensuring the appropriate redundancy protections apply for the duration of their leave.
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