Employers play a critical role in the fertility journey of their employees. When employers get it right, the loyalty they can cultivate among their staff is immense. As the Fertility Treatment (Employment Rights) Bill makes its way through Parliament, it is an opportune time for employers to reassess their approach to employee support in this area.
Upon implantation, an employee is considered pregnant and protected from discrimination, similar to naturally conceived pregnancies. This protected period lasts until the end of maternity leave or two weeks after a failed transfer. In the unfortunate event that the transfer is not successful, the protected period ends two weeks after the loss of the baby. Pregnant employees can take paid leave for ante-natal appointments. However, IVF appointments are not classified as such until successful implantation.
If an employee becomes ill as a result of, or during, infertility treatment, they should receive statutory sick pay or contractual sick pay, if applicable, in the usual way. Unfortunately, there is no statutory right to time off following a pregnancy loss before 24 weeks, nor any rights to statutory parental bereavement leave and pay. Any absence on medical grounds as a result of miscarriage before 24 weeks should be treated in the same way as pregnancy-related sickness.
The Fertility Treatment (Employment Rights) Bill aims to improve workplace protections for individuals undergoing fertility treatment. This bill would give employees going through fertility treatment the right to paid time off to attend appointments and for partners to take unpaid leave to accompany employees going through treatment, a right to complain to an employment tribunal if an employer unreasonably refuses a request to attend a fertility treatment appointment or fails to pay for this time off work, and protection from discrimination in a similar way to pregnant employees.
Many organisations lack specific policies for fertility treatment, often because the issue is not being raised. However, the absence of discussion does not necessarily indicate the absence of need. Employees may not be voicing their concerns simply because they do not see the issue being acknowledged in the workplace. By drafting a dedicated fertility treatment policy, employers are opening a door. This policy serves as an invitation for employees undergoing fertility treatment to seek the support they need. It sends a clear message that their situation is recognised and valued within the organisation.
It is a diverse journey, involving not just women, but also men, the LGBTQ+ community and solo parents. Ensure the used language and policies reflect this diversity, accommodating all paths to parenthood. To minimise employees undergoing fertility treatment taking sick leave for appointments, consider offering flexible-working policies, as treatment schedules can be unpredictable.
Fertility treatment impacts employees physically, financially and emotionally. Consider support for grieving staff. Provide counselling through an employee assistance programme, establish peer support networks, and guide staff to external resources like Fertility Network UK or the Fertility Foundation. Remember to educate and support managers in this process.
Provide somewhere that staff can store medication and a space where they can inject their medication. Alert affected staff about potentially sensitive events, such as pregnancy announcements or baby showers, and offer an opt-out.
Sarah Bogues is an employment lawyer at Freeths
