Julie Morris and Michelle Last: Should fertility support be a statutory right?

The number of people undergoing fertility treatment in the UK increases steadily each year. In 2019, more than 53,000 patients underwent around 69,000 fertility treatments. While we await the latest data, this upward trend means it is increasingly likely that employers will be faced with requests for work absences from employees seeking to undergo this treatment.

At present, there is no legal right for employees to take time off work for in vitro fertilisation (IVF) treatment or related sickness. Fertility appointments should be treated as medical ones and any sickness absence should be treated as any other sick leave.

However, many people choose not to tell their employer that they are undertaking fertility treatment and take the time off as holiday or as unpaid leave. Prolonged, unexplained requests for time off, whether sickness or otherwise, may trigger disciplinary procedures. There are also no specific protections under the Equalities Act at the early stage of fertility treatment, maternity protection only kicking in once the eggs are harvested and fertilised.

A statutory right to time off work for this treatment, which is available for all employees, would bring huge benefits. It is a logical extension to the current right to time off work for antenatal appointments, which gives women the right to paid time off work for pregnancy-related medical appointments once they are pregnant. Those struggling to conceive should similarly be permitted to have paid time off in order to become pregnant and it would help to alleviate the pressures faced by men and women undergoing fertility treatment.

This would also encourage a more open dialogue about fertility treatment in the workplace and erode any remaining taboo about discussing the mental and physical impact this can have on individuals.

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As mental health and wellbeing move up the corporate agenda, a small but growing number of businesses are offering fertility policies, which includes a package of support to employees. However, this is far from the norm. A supportive employer, in combination with wider statutory rights, can make all the difference to a couple’s journey to pregnancy and beyond.

Michelle Last and Julie Morris are employment law partners at Keystone Law