Should employers have a policy for staff going through IVF and assisted conception?

With increasing infertility rates in the UK, is it time for better workplace support for staff undergoing fertility treatment?

It is estimated that infertility affects around 1 in 7 heterosexual couples and rates of infertility are reported to be increasing. The Human Fertilisation and Embryology Authority Fertility Treatment Trends report states that around 53,000 patients had in vitro fertilisation (IVF) or donor insemination (DI) treatment in 2019, the most common forms of treatment.

The findings of the Fertility Network UK Survey on the Impact of Fertility Problems  show that 85% of respondents considered that their assisted conception or fertility treatment affected their work, 50% were concerned it would affect their career prospects, and 35% felt it did actually affect their career. And 58% reported that work impacted on their treatment, for example by not being able to attend appointments. On average, respondents to the survey took 8.74 days off work during each treatment cycle.

The results of the Government's 2021 Women's Health Strategy call for evidence show that many employers do not recognise infertility in the same way that they recognise other medical conditions and that those going through treatment need more support in the workplace, for example policies to enable them to attend appointments while undergoing treatment.

The impacts of infertility and related medical intervention on employees are both physical and mental. There can also be financial pressures where staff are funding their own treatment. Many employees feel unable to discuss their situation with their employer, and the additional difficulties of going through treatment without having support from an employer or colleagues can lead to significant emotional and mental health issues.

Discrimination and fertility treatment

Being infertile or having difficulty conceiving is not a protected characteristic under the Equality Act 2010. However, it is possible that employers could face discrimination claims in connection with the way employees undergoing fertility treatment are managed.

Case law indicates that infertility in and of itself is not a disability under the Equality Act. This is because the condition is unlikely to have a long term substantial adverse impact on the individual’s ability to carry out normal day to day activities.  Employers should however be mindful that mental or physical health conditions which cause infertility or arise in connection with infertility or fertility treatment could be disabilities.

Women undergoing early-stage fertility treatment are not pregnant and so in law do not have the protected characteristic of pregnancy or maternity. There is no statutory right to have time off work for fertility treatment or any related sickness before pregnancy commences. Protection applies only from the point where a fertilised egg has been implanted. If the implantation fails, the protected period under the Equality Act ends two weeks after the pregnancy ends.

A woman may bring a successful claim for direct sex discrimination if she can show that she has been treated less favourably than a man in similar circumstances. For example, a woman who has been refused paid time off to attend fertility treatment appointments might succeed in a claim if a man who requested paid time off for an elective operation has been allowed or would have been allowed to take the time off.

Following a judgment of the European Court of Justice in 2008, women undergoing IVF treatment are specifically protected under sex discrimination law from the time of egg collection (known as follicular puncture) to the time the fertilised egg is implanted in the uterus. This means that a woman who is less favourably treated than a male comparator in this period could succeed in a direct sex discrimination claim.

There is also a risk of indirect sex discrimination claims where a provision, criterion or practice of the employer particularly disadvantages women undergoing fertility treatment or assisted conception. A claimant is likely to be able to show that women as a group are put at a particular disadvantage, given that such treatment is more likely to be invasive and require more time off work for women than would be the case for men undergoing fertility treatment.

Where employers offer paid time off for women going through fertility treatment, there may be a risk of sex discrimination claims from men who argue that they have been less favourably treated in similar circumstances.  The Equality Act provides that "special treatment afforded to a woman in connection with pregnancy or childbirth" must be disregarded for the purposes of direct sex discrimination claims from men. This could apply where employers provide paid leave for women undergoing fertility treatment, but not for men supporting their partners in IVF or those undergoing other forms of treatment. However, the law in this area is untested and it is possible that it may not be found to apply to the period before pregnancy begins. In other words, there is a risk of direct sex discrimination claims from men if the comparator is a woman undergoing fertility treatment before pregnancy begins.

Employers should also be mindful of the rights of other staff with protected characteristics in connection with fertility treatment or assisted conception. For example, staff with the protected characteristic of gender reassignment, and lesbian and gay employees may also be pursuing fertility treatment or assisted conception, or supporting someone else through the process.

What are the benefits of having a workplace policy on IVF and assisted conception?

Having a specific policy which sets out the support your organisation offers to employees when they are undergoing fertility treatment or assisted conception will provide much needed clarity for employees who are considering or already undergoing treatment. Where a written policy is in place, employees are perhaps more likely to disclose their plans and concerns and it will be less likely that unexpected absences or performance issues connected to the treatment arise.

A clear and workable policy can assist line managers by providing an informed and consistent approach and a safe framework in which to discuss the employee’s needs alongside the business needs of the organisation.

What could an IVF and assisted conception policy cover?

Employers may consider providing for the following in such a policy:

• Clarity on how medical appointments connected with fertility treatment or assisted conception will be treated;
• A number of days’ paid leave per year for those undergoing fertility treatment or assisted conception;
• A number of days’ paid time off per year to accompany an individual undergoing such treatment;
• Treating time off due to sickness caused by the side effects of such treatment as sickness absence in accordance with the employer’s sickness absence policy;
• Recording sickness absence relating to such treatment separately from other sickness absence and disregarding it in any future employment-related decisions;
• Paid leave for those who have undergone a failed treatment cycle (where this is not treated as sickness absence);
• Paid leave following pregnancy loss after assisted conception (this may be part of a broader pregnancy loss policy);
• A designated member of staff to speak to in confidence about support at work; and
• Signposting staff to external sources of support and any relevant employee assistance or wellbeing service.

Further information for employers is available on the Acas website: Acas guidance for employers on IVF treatment and sources of support for employees can be found at  https://www.nhs.uk/conditions/ivf/support/.