This article looks at what rights a woman may have when undergoing fertility and In Vitro Fertilisation (IVF) procedures.
Can I take time off for IVF treatment?
There is no statutory right to time off work for fertility treatment, which can often be time consuming and stressful for employees.
However, your employer should treat your medical appointments for IVF treatment like any other medical appointment. If you are off sick due to the side effects of IVF, your employer should treat your absence as no different to any other sick leave.
If you are at a medical appointment or off sick, you should make sure you follow your employer’s usual sick policy requirements. Frequent requests for time off, particularly if unexplained, can lead to an employer triggering disciplinary procedures or even considering an employee’s capability to do the job.
It may therefore be a good idea to explain to your employer that you are undergoing IVF at an early stage. Your employer have a special leave policy which could cover absences for fertility treatment. This is likely to be unpaid leave but it is worth checking with your employer. Alternatively, you could consider taking annual leave for some of your appointments,
What if my employer treats me unfairly?
Guidance on the issue for employers is set out in the EHRC’s Employment Statutory Code of Practice which states that:
(a) In responding to requests for time off from a woman undergoing IVF, an employer must not treat her less favourably than they treat, or would treat, a man in a similar situation – doing so could amount to sex discrimination.
(b) After an embryo has been implanted, a woman is legally pregnant and entitled to protection from unfavourable treatment and time off for antenatal care (which can include appointments in relation to the IVF treatment).
(c) It is good practice for employers to treat any request for time off for IVF treatment sympathetically and consider adopting a procedure for dealing with such requests, perhaps including allowing women to take annual leave or unpaid leave in order to receive treatment.
A woman undergoing IVF may have a claim for indirect sex discrimination if she is subjected to a detriment for a reason connected to the treatment – for example, where an employer does not allow her to take unpaid leave.
Am I protected from discrimination?
There is currently no specific protection for women undergoing IVF treatment or their partners. Infertility is not a disability for Equality Act purposes.
If you are dismissed or disadvantaged because you are going through IVF but not yet pregnant, you will not have a claim for pregnancy and maternity discrimination but may have a sex discrimination claim. Protection against pregnancy and maternity discrimination under the Equality Act only begins when pregnancy occurs.
Case law suggests that a woman undergoing fertility treatment is deemed to be pregnant when her eggs are harvested and fertilised just prior to the embryo being transferred to her uterus. The protected period therefore begins shortly before the embryo is placed into the woman’s womb, which is typically a few days before. The ECJ has been ruled that the protected period does not begin at the point the eggs are frozen, if that occurs.
Once pregnant, you will benefit from protection from unfavourable treatment from your employer. This lasts throughout the “protected period”, which begins at the start of your pregnancy as defined above and finishes at the end of your maternity leave.
Once you have informed your employer in writing that you are pregnant, and if there are any identified risks in the workplace to you or your unborn child, the employer must conduct a specific risk assessment for you in order to comply with health and safety during pregnancy.
If you are not eligible for maternity leave, for example, because of miscarriage (before 24 weeks) or because you are not an employee, then the protected period ends two weeks after the birth, or the end of the pregnancy. If the treatment is unsuccessful, and doesn’t result in pregnancy, the protected period extends for 2 weeks after finding out that the embryo transfer was unsuccessful.
Although there is no case law on the point, a woman undergoing IVF may have a claim for indirect sex discrimination if she is subjected to a detriment for a reason connected to the treatment – for example, where an employer does not allow her to take unpaid leave.
Changing your work pattern
IVF treatment is demanding and involves daily medication and frequent appointments. You could request flexible working while undergoing IVF treatment, and it might be worth negotiating a temporary change to working patterns (rather than the default permanent change).
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 is not successful?
IVF 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 wish to take time off work to come to terms with the situation. It is important to talk to your GP who may refer you to a counsellor. If you find yourself 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?
If you have a miscarriage (before 24 weeks) you will not be entitled to maternity leave or pay. However, you should take sick leave for as long as your GP signs you off sick.
Sick leave for a miscarriage may be protected in the same way as sick leave for a pregnancy related illness, in which case, it should be ignored in respect of any promotion decision or the assessment of any other benefits at any stage of your employment. It should also not count towards your sickness record if your employer has a procedure that may lead to dismissal once an employee reaches a certain level of sickness absence. Even if it is not protected in the same way, employers must treat you fairly and it is unlawful to dismiss someone for an absence directly caused by miscarriage.
For more information on your rights if you have a miscarriage, or still birth, consult our pay on Miscarriage, stillbirth and neonatal death – your rights at work and to benefits.