Rights at work for those undertaking fertility treatment

This article outlines the rights of individuals undergoing fertility treatment, which includes various medical procedures designed to help those struggling to conceive a child.

Can I take time off for fertility treatment?

There is no statutory right to time off work specifically for fertility treatment, which can often be time consuming and stressful for employees. However, the Equality and Human Rights Commission (EHRC) recommends that employers handle requests for time off with understanding and care. While some employers might offer special leave policies, flexible working arrangements, or even cover fertility treatment costs, these benefits are not statutory rights (i.e. the basic legal rights that an employee or worker is entitled to).

If your employer does not have a specific policy for fertility treatment, you may need to use annual leave or unpaid leave for your appointments. Alternatively, your employer might treat your fertility appointments in the same way they would any other medical appointments.

If you become unwell due to fertility treatment and need to take time off work, your employer should treat this absence as like any other sickness absence. This could include paying you statutory sick pay or company sick pay, depending on your employment contract. It’s important to follow your employer’s usual sick leave procedures. Frequent or unexplained absences could potentially trigger disciplinary actions or impact job capability assessments.

It may be helpful to let your employer know about your fertility treatment early on, on a confidential basis. This way, they might be more understanding and can inform you if they have a special leave policy which could cover absences for fertility treatment. This is likely to be unpaid leave but it’s worth discussing options with your employer. Alternatively, you could consider taking annual leave for some of your appointments.

Am I protected from discrimination?

Currently, there is no specific legal protection for those undergoing fertility treatment (or their partners), and infertility itself is not considered a disability under the Equality Act. The EHRC Code recommends that employers treat requests for time off for IVF treatment “sympathetically” and that employers may wish to establish procedures for allowing time off for IVF and fertility treatment. These procedures may enable women to notify designated members of staff on a confidential basis that they are having treatment.

You may have some protections:

1. Sex discrimination: The EHRC Code provides that before embryo transfer, if you face less favourable treatment because you are undergoing fertility treatment (such as egg retrieval), this would not count as pregnancy and maternity discrimination but could amount to sex discrimination.
2. Pregnancy and maternity: Once an embryo is transferred to the uterus, you are legally considered pregnant. From this point, you are protected from pregnancy and maternity discrimination. If the treatment is unsuccessful, the protected period extends two weeks after the end of the pregnancy.
3. Disability: If an underlying condition affecting fertility (like endometriosis) meets the criteria for a disability under the Equality Act, you would be protected from disability discrimination. The emotional and physical toll of fertility treatment could also lead to or worsen other medical conditions.
4. Other Protected Characteristics: Depending on your situation, other characteristics, such as age or sexual orientation, might be relevant.

It is unlawful for your employer to treat you unfavourably because of pregnancy or maternity, see our pages on the pregnancy and maternity discrimination for more information.

If you have informed your employer in writing about your pregnancy and there are workplace risks to you or your unborn child, you have a number of protections. We have more details on our pages on pregnancy and health and safety.

Changing your work pattern

Fertility treatment can be demanding, often involving daily medication and frequent appointments. You might want to request flexible working arrangements to help manage these demands. Flexible working requests generally result in a permanent change in your terms and conditions and so if you only need this on a temporary basis, you should make this clear in your request.

Bear in mind however that the timing of the treatment is often unpredictable and may not lend itself to a regular flexible working pattern.

What if IVF or fertility treatment is not successful?

Fertility treatment is not always successful, and it can be devastating to find out that you are not pregnant. As an employee, you have the right to sick leave if you need to take time off work due to the impact on your physical or mental health. It is important to talk to your GP who may refer you to a counsellor. If you are too ill to work for a period of 4 days or more, you may be able to receive Statutory Sick Pay after the 3rd day.

What if I have a miscarriage, stillbirth or neonatal death?

The death of a baby is devastating. We have set out the legal position below and the language used is therefore legalistic language. There are charities including Tommys and SANDS who provide additional support.

Miscarriage: If you have a miscarriage in the first 24 weeks of pregnancy, unfortunately you are not entitled to maternity leave or pay, parental bereavement leave or neonatal care leave. Any absence on medical grounds should be treated in the same way as pregnancy-related sickness.

Sick leave due to a miscarriage should be managed like any other pregnancy-related illness. It should not affect any promotion decisions, the assessment of any benefits, or count towards your sickness record if your employer has a procedure that could lead to dismissal once you reach a certain level of sickness absence. Even if not explicitly protected, your employer must treat you fairly and it is unlawful to dismiss you for an absence directly caused by miscarriage.

Stillbirth and Neonatal death: A stillbirth is when a baby is not born alive after 24 complete weeks of pregnancy. Where a child is born alive at any stage of the pregnancy but then dies within 28 days of the birth, this known as “neonatal death”.

All of the legal rights associated with childbirth (including the right to maternity leave) apply where a child is stillborn after 24 weeks of pregnancy, or after a neonatal death. This includes the right to maternity leave, which starts the day after the birth if it had not already begun. Both parents may also be entitled to statutory parental bereavement leave and pay.

For more information on your rights if you have a miscarriage, stillbirth or neonatal death, please see our page on Miscarriage, stillbirth and neonatal death – your rights at work and to benefits.

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

Our helpline and online contact form is now closed as we wind down our operations. Our free legal advice pages remain available and up to date until further notice. You can find a list of trusted organisations that may be able to help you below.