Conceiving the Inconceivable - IVF and Employment Law

Susan Thompson, Partner and Adam Hugill, Solicitor discuss whether employers have (or should have) obligations towards employees undertaking fertility treatment such as IVF.

Whilst, as a matter of law employee’s rights, once they are pregnant, are set out in legislation and established case law, there is no specific legislative protection in place aimed at employees who are trying to get pregnant, particularly by medical intervention, through procedures such as IVF. The statistics, however, surrounding IVF treatment demonstrate that this is an issue of growing social importance and one employers need to be aware of. For example, the figures in 2004 are that 30,818 women underwent IVF treatment which resulted in the birth of over 10,000 babies. Currently 1 in 7 couples are undergoing IVF treatment and 1 in every 80 babies is born as a result of IVF treatment. 

These figures are, however, expected to increase as the Government issued guidelines in April 2005 so that one cycle of IVF treatment should be offered free to all women aged between 23 and 39 who have difficulty conceiving. The Government hopes that this commitment can be increased to three free cycles of IVF, which have a success rate of up to 50%.

The majority of employees obviously choose not to share details of their attempts to conceive and indeed most employers would rather not know! Certainly we are not aware of any UK employers who have adopted, if recent reports in the Dutch press are to be believed, the international airline KLM’s policy of allowing their employees “ovulation leave” i.e. at the time of the month that they are most likely to get pregnant. 

Whilst forgiving the pun, it is not inconceivable that an employer would want to be seen to support an employee’s attempt to conceive via IVF but, the question is should employers be encouraged to do so and should employers consider implementing a formal policy setting out in detail what an employee may expect from their employer whilst undergoing IVF treatment? 

IVF Treatment

There is no doubt that the IVF process can be very stressful and time-consuming for the parties concerned, with a significantly greater impact on the woman trying to get pregnant. However, it is often the case that both parties will want to be present at appointments and consultations. 

Prior to undergoing IVF, employees may have already had a number of appointments with consultants and medical treatment for fertility problems, which will invariably have required time off work. Outside of London, travel to an appropriate hospital/clinic for even the most straightforward of consultations may make it necessary for a day out of the office. Later in the process, depending on the treatment undertaken, it may be that general anaesthetic and hospitalisation is required resulting in potentially longer periods off work. In addition, there is a great deal of emotional pressure and potential side effects of the treatment that can affect all involved.

Protection from Discrimination?

Most employers are aware that discrimination on the grounds of pregnancy is illegal and this has been the case for over 20 years. However, it still does not stop employers from being filled with dread at the prospect of an employee taking up to 52 weeks maternity leave and panicking over the prospect of covering the role during the absence! From this point of view, it might seem counter-productive to ‘encourage’ an employee to get pregnant in the first place by supporting IVF treatment. However, statistics continually demonstrate that a supportive employer who provides the best and most flexible policies are the ones with the greatest employee satisfaction and staff retention rates, and perhaps this is one more way that an employer can assist in promoting a happy and effective workforce.

There will always be employers who see the other side of the coin. Therefore, to what extent is IVF treatment a pregnancy related reason under discrimination legislation, affording employees protection from discrimination by an employer?

Employees do not have any specific protection from being treated less favourably or dismissed due to taking time off for fertility treatment. Although there may be recourse by alleging direct discrimination on the grounds of sex, it would be difficult for an employee to succeed in such an argument as both men and women can undergo fertility treatment. 

The extent to which IVF was considered to be a “pregnancy related reason” and therefore would receive protection under the Sex Discrimination Act 1975, was considered by the EAT in the case of Greenwich LBC v Robinson [1994]. Ms Robinson was selected for redundancy due to a high sickness record. A significant part of this sickness concerned time off for IVF treatment. Ms Robinson brought a claim for unfair dismissal, which was initially successful at the Employment Tribunal but was ultimately overturned on appeal, where the Employment Appeal Tribunal concluded that, although IVF treatment was ostensibly related to pregnancy, it was actually about not being pregnant. 

However, any policy, whether express or through custom and practice, which prevents employees from taking time off for IVF treatment may be indirectly discriminatory as the impact will be much greater for women.

The position is, however, different in some of our European neighbours. For example, Israel specifically prohibits discrimination on the grounds of IVF treatment. We consider that it will only be a matter of time before the UK catches up, either voluntarily, through case law, or as a result of EU directives. 

Supporting Employees

Some employees are happy to broadcast that they are trying for a baby using IVF, for others it is a much more private affair. How far, therefore, should an employer go to support their staff? 

In view of the growing number of couples undergoing IVF treatment, perhaps employers could take a much more supportive stance towards their employees. Any such support must be offered to both men and women. However, without going into the details of what is involved, the support would be of much greater importance to the employee who is undergoing the actual procedure. 

A general policy stating that employees will be allowed paid time off in addition to holiday/sick leave, may well be sufficient. However, a more detailed policy would provide both the employer and employees concerned with certainty and guidance as to what is expected by either party. This should ensure that all employees are treated in a consistent manner (thus reducing the risk of potential claims for indirect sex discrimination). 

An IVF policy would need to set out the extent to which the employer will allow time off work and whether this will be paid or unpaid. Whether the time off will be for the individual directly concerned, or whether a partner may also be given leave to attend necessary procedures in a supportive capacity. In the event that there are complications, to what extent will the employee receive the benefit of any company sick pay scheme.  Importantly, any such policy would need to be carefully drafted to ensure that it does not discriminate on the grounds of gender or sexual orientation. 

Any policy would need to have potential medical developments in mind. A ‘pregnancy’ may be in existence even before the mother in question is actually pregnant. This is the situation that has arisen in the case of Sabine Mayr v. Backerei und Konditorei Gerhard Flockner OHG (C-506/06). This case was referred to the ECJ from the Austrian courts.  The question before the ECJ is to what extent is a female employee who undergoes IVF protected under Directive 92/95 (concerning the protection of pregnant employees). The facts of the case are that a female employee underwent IVF treatment and a fertilised ovum was created. However, she was made redundant before her fertilised ovum was implanted. The fact that the ova was fertilised meant that an embryo existed in vitro, however, to what extent was the female employee protected by the Directive? In other words, is the existence of an in vitro, embryo sufficient for a female employee to fall within the definition of “pregnant”? An Advocate General’s Opinion is expected on 27 November 2007.

Susan and Adam regularly advise both employees and employers on all aspects of employment law, including discrimination. Should you require any further information or assistance, please feel free to contact us on 0207 495 3003.

 

This article was first published by Consult Gee HR during November 2007 www.consultgee.co.uk
uk