Employees rights during IVF treatment

Posted 01/10/2019 : By: Kathryn Pratt

More and more couples are turning to IVF treatment for help to have a baby. With infertility affecting one in seven couples in the UK, it is important that employers recognise the significance of understanding what IVF treatment involves and that different employment rights apply at different stages of the process.

What is IVF?

In Vitro Fertilisation (IVF) is a process of fertilisation which happens outside a woman's body to help her become pregnant if there are fertility problems. It can typically take between four and seven weeks for one cycle of IVF treatment. IVF treatment is not always successful and may need to be repeated.

Sex, Maternity or Pregnancy Discrimination 

The Equality Act 2010 protects employees from discrimination because of sex, pregnancy or maternity. These provisions may apply in relation to an employee who is undergoing IVF depending on which stage of the process the employee is going through.

In the early part, a woman may be protected from unfair treatment because of sex discrimination if it is found that an employer has treated her less favourably than a fellow male employee. For example, if a woman is required to use her annual leave entitlement to cover her IVF appointments while a male employee is allowed to take a paid time off to go to the dentist, the woman may be able to show that her employer’s treatment of her amounts to sex discrimination.

In what can be the final part of the IVF process, embryos are placed inside a woman’s body. At this stage, the employee should inform her employer that she may become pregnant. 

If the embryo transfer is successful, meaning one of the embryos attaches itself inside her body, this is known as implantation. This is when she is legally regarded as pregnant.

A pregnancy test will usually be taken two weeks after the embryo transfer to confirm the implantation has been successful. In the early days after the transfer, both the woman and the employer can not be certain whether she is pregnant or not, therefore, it is recommended that the employer regards her as pregnant from the stage of embryo transfer.

From this stage, the employer should be aware that protection against unfair treatment because of pregnancy and maternity are now in force. An example of unfair treatment would be an employer going through a disciplinary process with the woman as a result of absences related to the pregnancy, such as pain after the embryo transfer.

If the pregnancy test then provides a positive result, the woman should inform her employer. Protection against pregnancy and maternity discrimination will then continue until her maternity leave ends. If the test proves the pregnancy is unsuccessful, her protection will end two weeks after she is informed of the result.

Harassment 

Under the Equality Act 2010, harassment is defined as unwanted conduct that occurs with the purpose of violating the dignity of an individual or creating an intimidating, hostile, degrading or offensive environment. It is the employer’s responsibility to ensure that any employees undergoing IVF treatment are not subject to harassment either by the employer or by other employees.

Harassment could take the form of comments or jokes from co-workers or an employer, about a woman’s or couples need to undergo IVF treatment, or remarks about the woman’s prioritisation to take time off from work to try for a baby. 

To eliminate harassment because of IVF, employers should ensure they have robust policies and procedures in place and that line managers are fully briefed. Relevant wording relating specifically to IVF could be inserted into the employer’s equal opportunities, dignity at work or harassment policy. Including specific wording within policies will also help an employer that is liable for the acts of employees to defend a claim by showing that it had taken reasonable steps to prevent the harassment.

Time off

There is no statutory right for employees to take time off work to undergo IVF investigations or treatment.

Employer’s must consider their approach to time off for medical appointments. Company policy 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 a company takes, it is important to be consistent.

Once the employee is pregnant, she is entitled to antenatal appointments. Pregnant employees have the right to reasonable time off to attend antenatal care appointments. Such appointments and travel to and from are to be paid at the employees’ normal hourly rate.

Talking to employees undergoing IVF treatment

Many employees will be reluctant to talk to their employer about infertility treatment due to the extremely stressful and personal nature of the situation. Therefore, employers should ensure that all conversations of this nature are handled with confidentiality and sensitivity.  

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