What can employers do to support employees facing fertility challenges?
Awareness of fertility issues is increasing and there is growing recognition of the fact that employees undergoing fertility treatment may need support at work and time off to attend treatment.
National Fertility Awareness Week took place between 31 October 2022 and 4 November 2022. Infertility can have a significant emotional impact on those affected and pursuing fertility treatment, such as in vitro fertilisation (IVF), can exact a substantial emotional, physical and financial toll. According to the Fertility Network UK, more than 3.5 million people in the UK are affected by fertility issues and, in a recent survey, less than half of the fertility patients surveyed felt that they had received good support from their employer.
What rights do employees have in relation to fertility treatment?
Employees currently have no specific employment rights or protections in relation to fertility treatment. There are protections and rights connected to pregnancy, which an employee who has become pregnant as a result of fertility treatment will be entitled to in the same way as any other pregnant woman. These are discussed further below.
Employers should note that less favourable treatment because an employee is undergoing fertility treatment could amount to direct sex discrimination, for example if a woman is not allowed time off to attend IVF treatment but a man would have been treated differently.
Time off work for fertility treatment
There is no statutory right to time off work to attend fertility treatment. An MP has recently put forward a Private Members’ bill – the Fertility Treatment (Employment Rights) Bill – the purpose of which is to provide statutory time off work for employees having fertility treatment. The second reading of the bill was due to take place on 25 November 2022, however Private Members’ bills are not part of a government’s planned legislation and are therefore less likely to become law.
Employees may need to use their annual leave entitlement to attend fertility treatment. Employers should consider whether the employee will have sufficient annual leave remaining to rest from work and whether there are other options that could be offered, such as short term flexible working or unpaid leave.
Fertility treatment may leave an employee feeling unwell and any resulting sickness absence should be treated like any other sickness absence. However, employers should note that, as women generally require more treatment for fertility than men, taking action against an employee for absences due to fertility treatment may lead to the risk of an indirect sex discrimination claim.
Pregnancy following fertility treatment
Once an employee becomes pregnant, she is protected from discrimination on the basis of her pregnancy. A woman undergoing fertility treatment is deemed to be pregnant once a fertilised embryo is implanted. It is unlawful discrimination if, during the “protected period”, an employer treats an employee unfavourably because of her pregnancy or because of an illness she has suffered as a result of her pregnancy. The protected period starts when a woman’s pregnancy begins. The end of the protected period depends on whether the woman has the right to ordinary and additional maternity leave.
If following fertility treatment, a pregnancy is unsuccessful, the employee is still protected from pregnancy discrimination until two weeks after the end of the pregnancy. The employee may also be entitled to statutory parental bereavement leave and pay. Otherwise, employers should deal with the matter sensitively and may consider offering time off.
If fertility treatment leads to a successful pregnancy, the employee will have the same rights throughout the pregnancy and maternity as any other pregnant woman.
Comment
Fertility challenges are likely to be just that – challenging. Supporting employees through difficult times is likely to aid staff retention and avoid dips in performance. There are several steps that employers can take to support employees dealing with fertility issues.
- The Fertility Workplace Pledge (recently launched by the same MP who proposed the Private Member’s bill) suggests that positive steps employers could take include raising awareness of fertility in the workplace, ensuring line managers are trained to understand the realities of fertility treatment so that they can support colleagues and providing staff with the right to request flexible working so that they can attend fertility appointments.
- The Equality and Human Rights Commission Code of Practice suggests that, when dealing with employees who require time off for IVF or other fertility treatment, good practice would be to treat employees sympathetically, to consider adopting a procedure (which could include allowing women to take annual leave or unpaid leave when receiving fertility treatment) and to designate a member of staff whom employees can inform on a confidential basis that they are undergoing fertility treatment. The Code is not legally binding but may be taken into account by the Employment Tribunals.
Employers could therefore consider implementing a policy highlighting the support offered to their employees who are facing fertility challenges and undergoing fertility treatment. This may mean staff feel more able to confide in their employer about their fertility treatment, particularly if there is a designated member of staff they can speak to confidentially about it. We would also suggest implementing a policy setting out employees’ rights in relation to parental bereavement leave and pay. Employers should provide training to managers on their policies which could also include training on supporting employees undergoing fertility treatment.
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