With a growing number of people having children later in life and the make-up of the ‘traditional’ family unit growing ever more diverse, in vitro fertilisation (IVF) is becoming more and more prevalent.
Those undergoing IVF treatment are likely to experience a high deal of stress and anxiety in relation to the process itself. As such, it is important that employers are aware of their obligations towards those people and how they sit alongside other pregnancy protections.
Unlike employment legislation for pregnancy, maternity and paternity, there is no enshrined legislation that compels employers to give time off work for IVF treatment or any initial consultation. As such, it follows that employers are under no legal obligation to pay the employee during any time off for IVF.
However, Acas guidance on this point advises that “employers should treat medical appointments related to IVF the same as any other medical appointment under the terms and conditions of the contract of employment.”
Women are, of course, protected from pregnancy-related unfair treatment and discrimination throughout the protected period. In the case of IVF, this protected period will only begin at the implantation stage, not before. This means that employers are unlikely to be liable for pregnancy discrimination in relation to any unfair treatment prior to the implantation stage.
Following implantation, there is a period of time under which the employee is, under employment law, considered ‘pregnant’ until such point as it is found if the IVF treatment is successful or unsuccessful. If the employee becomes pregnant as a result of IVF, she is then protected against discrimination under the usual pregnancy and maternity discrimination until the end of her maternity leave.
However, if the treatment is unsuccessful, the protected period will be extended for a further two weeks.
Employers should be careful not to treat an employee less favourably because of her decision to undergo IVF treatment, even if a pregnancy does not result from the treatment, because it is likely that the employee could successfully argue she had been subject to sex discrimination.
Employers should ensure they have robust policies and procedures in place and that line managers are fully briefed so that the organisation maintains a consistent and equitable approach.
Philip Richardson is head of employment law at law firm Stephensons
