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IVF treatment - workplace discrimination protection

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IVF treatment - workplace discrimination protection

With a growing number of people having children later in life and the diversification of the “traditional” familial composition, IVF treatment is becoming more and more prevalent. In light of this it is important to examine what employment rights are in place to protect those undergoing treatment and how they sit alongside other pregnancy protections.  

In Vitro Fertilisation or “IVF” is the process of fertilisation which happens in a laboratory setting, outside the woman's body. This process can typically take between four and seven weeks for one cycle.

From what point am I protected?

Women are protected from pregnancy related unfair treatment and discrimination throughout the “protected period”. Somewhat surprisingly, this period will only begin at the implantation stage and not before. This means that an employer is therefore unlikely to be guilty of pregnancy discrimination in relation to any unfair treatment prior to the implantation stage.

However, even if you are not within the “protected period”, if you suffer discrimination/ill treatment as a woman because of your IVF, outside of the “protected period”, then it may still qualify as an act of sex discrimination.

Following implantation a pregnancy may or may not occur, but the women is regarded as being pregnant from this point onwards. On a practical level, it is prudent to advise your employer of the implantation at the earliest so that there can be no doubt that you are protected from any adverse treatment arising from this.

If the IVF treatment is successful and the woman remains pregnant she will be protected against discrimination on the grounds of pregnancy until the end of her maternity leave.

However, if the treatment is unsuccessful, the protection will end two weeks after the end of the pregnancy. A pregnancy test is taken two weeks after implantation and, if the test is negative, the protected period extends for a further two weeks.

Can I take time off work for IVF treatment/investigation?

At present, the law does not give employees the right to take time off work to undergo IVF investigations or treatment. However, many employers recognise the unique circumstances of undergoing IVF treatment and are encouraged, where possible, to show flexibility and leniency. Many operate specific IVF policy which will clearly set out your rights and obligations.

As there is no express statutory entitlement to time off for IVF investigations or treatment it follows that there is no automatic right to be paid during any time off for treatment. However, the ACAS guidance on this point states as follows:

“Employers should treat medical appointments related to IVF the same as any other medical appointment under the terms and conditions of the contract of employment. Employers may agree to flexible working arrangements or a combination of paid, unpaid, or annual leave during the treatment.”

The problem for employers with this approach, is that it could give rise to indirect sex discrimination claims as it could be argued such a policy may disproportionately affect women.

Again, it is important that you check your own company’s policies and if in doubt speak with your line manager or HR department.

What can I do if I suffer discrimination?

This is a particularly complex area of law, particularly concerning the issues of “protected period” and identifying the correct legal label for discrimination. If you feel that you being treated unfairly or differently due to your IVF treatment or gender, it is important to seek advice from the employment specialists here at Stephensons on 01616 966 229.

By Stephen Woodhouse, trainee solicitor, employment law department.