Most employers will be familiar with their obligations around maternity, paternity, adoption and shared parental leave. Many employees will take advantage of one of these at some point during their employment. Historically, the position of employees undergoing IVF treatment has been less well understood but there is a growing awareness that this is an area where employees really do need the support and understanding of their employer – and the law might be going to bring some new rights into play too.
What right is there to time off for IVF appointments?
There is no general right for any employee to have time off work, paid or otherwise, for medical appointments. There is an exception to that rule for pregnant women attending antenatal appointments and also for individuals adopting but those exceptions do not apply to women undergoing IVF treatment.
To our mind, it would be a supportive and reasonable step for an employer to make some accommodation for paid time off in these situations but the number and length of the appointment may be greater than standard antenatal appointments and not all employers may feel they can exercise a discretion in this way. If you do decide to permit paid time off, we would strongly recommend developing a policy around this so that employees are clear as to the circumstances in which paid time off will and will not be permitted and so that you can ensure consistency in how it’s applied.
Otherwise, an individual’s options under the current law would either be to take the time off work unpaid, to take the time but make it up at a later point or to use annual leave. None of these is entirely satisfactory and for some employees, they may find their employer is not willing to support the first two. The third option certainly needs to be approached with caution because annual leave should be used to give rest and relaxation from work and attending fertility appointments is not going to meet that level. Whilst an employee could nevertheless choose to use her holiday in this way, we would encourage an employer to discuss other options and to monitor the time off to make sure she is not left with insufficient holiday to take in the usual way.
Do the individual’s rights change if she becomes pregnant?
If a woman becomes pregnant via IVF, she will then have all of the same pregnancy and maternity rights as non-IVF pregnancies. Her pregnancy rights would only begin, however, once she has completed the last part of the IVF process, known as embryo transfer, when the fertilised egg(s) is (are) implanted.
If the implantation fails and the pregnancy ends, the protected period ends after a further two weeks have elapsed.
Is there any other protection an employee in this situation might have?
There is currently no specific protection for women undergoing IVF treatment or their partners, as infertility is not a disability for Equality Act 2010 purposes and IVF treatment does not fall within the scope of the pregnancy and maternity legislation. In essence, if an employee feels disadvantaged and she was going through IVF but was not yet pregnant, she would not have a claim for pregnancy or maternity discrimination (protection against pregnancy and maternity discrimination under the Equality Act only begins when pregnancy occurs), but she may have a sex discrimination claim. She may try to argue that she has been treated less favourably on grounds of her sex or potentially even sexual orientation.
What other support can you give?
Even though the current scope of legal protection for employees with fertility problems or undergoing IVF treatment is limited, employers still have an important role to play.
A recent survey by Fertility Network UK found that more than half (55%) of employees struggling with fertility problems or going through fertility treatment were not getting the support they need from their employers. Whilst the majority had disclosed their struggles to their employer, only a quarter reported a supportive workplace policy and just under half talked about adjustments their employer had made to assist then, for example fridges for medications, a quiet space to inject or flexibility to take last-minute calls.
It’s not difficult to appreciate that experiencing fertility issues is likely to be a very difficult, emotional and stressful time for the individual. It is important that employers are supportive and this does not have to take the form of expensive initiatives. Simple steps such as raising awareness through internal presentations and providing training for managers can be very beneficial, so that managers understand both the personal side of these issues, as well as the legal.
Employers could also potentially look at interest-free loans or employee benefits schemes that find treatment, both of which may be no or low-cost options.
Private Members’ Bill
Nickie Aiken, MP for Cities of London and Westminster, has brought a Private Members’ Bill to Parliament to improve workplace protection for women undergoing IVF: the Fertility Treatment (Employment Rights) Bill.
If passed, the Bill would require employers to allow employees to take time off work for fertility treatment appointments. It would also give rights to partners to accompany women to appointments (on an unpaid basis). The Bill would also extend protection from discrimination.
Although the Bill has been working its way through Parliament, most Private Members’ Bills don’t become law and this one was not included in the recent raft of Private Members’ Bills which the Government confirmed it was backing. However, the introduction of the Bill is clear evidence of an appetite for change in this area.
What can you do?
We’ve set out above some supportive measures an employer could take and we would recommend looking at a fertility policy. We know from societal trends around motherhood, birth rates and family friendly workplaces that the talk around this area is unlikely to die down and there is a real opportunity for an inclusive employer to incorporate fertility within its equality, diversity and inclusion initiatives and to mark itself out as an organisation which cares. That, in turn, can only assist an organisation in attracting and retaining the best talent and to taking a really positive step to support its workforce.
If you have any further inquiries regarding IVF treatment please feel free to contact our Employment Team.