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Undergoing IVF can be stressful enough - know your rights at work before you start

Undertaking IVF treatment can be an emotionally draining experience and is likely to impact on a woman’s work life due to the need to take time off to undergo treatment.  Women undergoing treatment are offered some specific protection however, a recent case has confirmed that the extent of that protection is somewhat limited.

The case involved a Mrs Sahota, who commenced a course of IVF treatment in November 2007. Following the procedure she complained of sex discrimination and harassment by her employer, which included remarks made by her line manager and the implementation of disciplinary procedures regarding sickness absence and anomalous overtime claims.  None of the treatment she complained of however, was ultimately found to have occurred on the grounds of her undertaking IVF treatment and therefore her claim was unsuccessful, demonstrating that the protection afforded to women taking time off for IVF is not always as far-reaching as you might think.

Why this case was important

The case did, however, confirm that unfavourable treatment of employees undergoing IVF treatment will automatically be unlawful (in the same way as discrimination against pregnant employees) if it occurs within a limited period beginning before implantation in the time it takes for the ova to be collected, fertilised and the “immediate” implantation of the fertilised ova.  In this period, women undergoing treatment should be treated as being pregnant.

Where the implantation fails, the protected period will end once two weeks have elapsed.  The longer period between the freezing of fertilised ova and later implantation does not qualify for automatic protection.

Unfavourable treatment of women undertaking IVF who are not yet pregnant (either because treatment has begun but ova have not yet been implanted, or because an implantation has failed), will not automatically be discriminatory in the same way as pregnancy discrimination.  Such treatment may be sex discriminatory if a male comparator in similar circumstances was or would have been treated more favourably.

What you should be aware of if undertaking IVF treatment

Medical advice on the impact of the treatment and specifically whether it is likely to be necessary to either work reduced hours or take leave from work should be sought before treatment begins.  Generally, IVF is classed as medical treatment so any absence relating to it will be treated as sickness absence.

Employees should check whether their employer has a specific policy covering leave for IVF treatment.  In the absence of a specific policy, in addition to the option of taking sick leave (in accordance with medical advice), consideration could be given to whether other types of leave (for example, annual or compassionate leave, flexible working arrangements or even a career break) might be available.

Dismissing a woman on the grounds of sickness absence once IVF treatment has entered the latter stages as outlined above, will amount to unlawful sex discrimination, as will other detrimental treatment including disciplinary action, demotion or selection for redundancy.  If an employee suspects that their employer has subjected them to unfavourable treatment due to IVF related sickness absence, she may have grounds to bring a complaint in the Employment Tribunal. Women who consider that they may have been discriminated against in this manner are advised to seek legal advice as soon as possible.

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