An employee has informed me that they are planning to undergo IVF treatment. Do we have to make any special accommodations for them at work?
In vitro fertilisation, commonly referred to as IVF, is a medical technology available to individuals who are experiencing difficulties conceiving a child. In many cases, the IVF procedure will require multiple medical appointments, including pre-screening tests, before the eventual implantation takes place.
At present, there is no statutory right to provide staff with time off work to undergo fertility treatment. However, employees can decide whether to allow staff to take additional unpaid leave. Alternatively, employees may elect to use their annual leave entitlement to request time off for IVF purposes, or come to an alternative arrangement if their contract does not state time off for medical appointments.
The Equality and Human Rights Commission (EHRC) encourages employers to take a flexible approach to requests for time off for IVF treatment and therefore, employers will be well served to treat these requests the same way they would any other medical appointments such as doctor or dentist ones.
When dealing with an employee undergoing IVF treatment, it is essential that employers have a firm understanding of the risk of discrimination. Whilst an employee undergoing the early stages of IVF will not be considered pregnant under the Equality Act 2010, the European Court of Justice (ECJ) has previously ruled that treating a female employee unfavourably due to her IVF treatment may still qualify as sex discrimination.
It is also imperative that employers understand that an employee will be considered pregnant once the implantation has occurred, and therefore protected from detrimental treatment on this basis. Implantation is defined as the process by which the fertilised egg is placed in the employee’s womb.
Employees will retain this protected status up until the point that the IVF treatment has proven to be successful or unsuccessful. Individuals are typically told to complete a pregnancy test 2 weeks after the implantation to evidence this. If the treatment is a success, then the employee will continue to be protected against discrimination on these grounds up until the end of their maternity leave. However, if the treatment is unsuccessful then the protected period will only last for a further two weeks.
If your employee becomes pregnant following IVF, then they must make the relevant accommodations. This includes protecting the employee from discrimination or harassment at work, whilst also ensuring that any pregnancy-related sickness is discounted from absence measuring procedures. In addition, employers must ensure that they provide staff with the same rights to maternity leave and pay as other pregnant employees, whilst also ensuring the appropriate redundancy protections apply for the duration of their leave.