MP Nickie Aiken has recently launched a campaign for the Government to introduce greater workplace protection for women undergoing IVF, including a right to time off to attend fertility-related medical appointments.
For those who pursue fertility treatments such as IVF, the emotional, physical and financial toll can be significant. Often the stigma around reproductive health at work prevents employees from disclosing that they are seeking (or supporting someone) through treatment, which can result in additional stress and even lead to them leaving employment altogether.
With the NHS estimating that fertility issues affect around 1 in 7 couples, here is a quick recap of the current position on employment rights during the IVF process and some top tips on how employers can support employees through what is often a very difficult and traumatic stage of their lives.
Current position
The rights and protections available to employees depend upon the stage of treatment:
| Stage of IVF process | Rights |
| Attendance at fertility treatment appointments | Although the EHRC Code says that it is good practice to treat any request for time off for fertility treatment sympathetically, there is no statutory right to time off for employees to attend appointments or to accompany their partners undergoing treatment. Employees could request time off to attend in the same way as they would any other medical appointment. However, employers are not required by law to offer paid time off for this or even to allow it, so it will depend on any relevant policy that is in place. Alternatively, employees could request to take annual leave. |
| Follicular puncture (when the eggs are collected) | From this point, a woman will be protected by sex discrimination law. Any less favourable during this time because she is undergoing IVF treatment will therefore constitute discrimination on the grounds of sex. If an employee is off sick because of the side effects of the treatment, this should be treated in the same way as any other sickness absence. As the employee is not yet “pregnant”, they will not be entitled to any protection from discrimination on the grounds of pregnancy/ maternity. |
| Fertilised ovum is implanted | The employee is now deemed to be pregnant (whether or not the cycle of IVF is ultimately successful or not). This signals the start of the protected period and protection from discrimination on the grounds of pregnancy and maternity (although note an employer will generally only be liable for pregnancy discrimination if it is aware that someone is pregnant). The pregnant employee will have a right to statutory time-off to receive antenatal care, and their partner will generally be entitled to unpaid time-off to accompany them on two occasions. Certain health and safety duties will arise to protect the health and safety of the expectant mother. |
| If the implantation fails and the pregnancy ends | Protection on the grounds of pregnancy and maternity will end after two weeks have elapsed. If an employee is signed off sick or wishes to take sick leave as a result, this should be treated in the same way as any other sickness absence. |
Supporting employees in the workplace Having appropriate support in place could help tackle the stigma around fertility issues and have a positive impact on culture and equality in the workplace.
There are a number of ways employers can do this:
- Introduce an IVF and fertility treatment policy. This will help to remove any uncertainty employees may have about the support available and may encourage them to come forward to their line managers with any issues they are experiencing that could be affecting their work. Some employers make provision for paid time off to attend appointments and a period of leave in the event that the treatment is unsuccessful. However, employers should be mindful of sex discrimination claims from men. In practice, if you’re going to offer fertility benefits such as paid time off for someone undergoing treatment, you should also consider allowing partners accompanying them to appointments to have paid time off too.
- Train managers in how to apply the policy fairly and consistently, and how to approach sensitive conversations with staff.
- Offer fertility benefits. This type of financial and practical support is gaining momentum across the UK amongst some of the larger employers. This includes free initial consultations, infertility diagnosis, egg freezing, and subsidised or reimbursed medication and treatment. Not only is this a valuable tool for recruitment and inclusivity, but it helps to reduce the financial burden of the fertility journey.
- Ensure employees are aware of any Employee Assistance Programmes or private medical insurance that could support them during the process. The physical and emotional impact of IVF can be significant and access to support via an Employee Assistance Programme or private medical insurance may assist with alleviating this.
- Consider granting a temporary period of flexible working. By its nature, IVF treatment can be unpredictable with changes required to appointment times based on hormone levels or progression of treatment. Flexible working will make it easier for individuals to attend appointments at short notice and work around any side effects, which will help to alleviate additional stress about disrupting usual working hours.
- Raise awareness across the workforce. This could be done through presentations or workshops, and will help to create an open culture where people feel supported and able to talk about family plans without fear of reprisal.
For further information, please contact:
Kloe Halls, Linklaters
kloe.halls@linklaters.com
