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Infertility: The Unspoken Struggle

Thursday 24 February 2022

Infertility is unfortunately becoming more prevalent with the NHS estimating that around one in seven couples may have difficulty conceiving.  Given the inherent link between infertility and age, it is perhaps not surprising that infertility is on the rise as people are waiting to have children until later in life.   

On this issue, reports have recently surfaced of large corporate employers such as Apple and Facebook, offering fertility benefits to their employees. This has also included UK employers such as Natwest and Centrica.  The Financial Times reported that law firms Cooley and Clifford Chance have offered UK staff fertility benefits for the first time; including egg freezing and IVF. The potential advantage of these benefits for both employees and organisations should not be underestimated as infertility has widespread impact on an individual level and in the workplace. 

In this blog, we examine some of the difficulties faced as a result of infertility and  the protection afforded to those undergoing IVF treatment as it stands today.  In our second blog, we’ll consider the ways in which organisations can help their employees through this challenging time, including the business case for doing so.

Impact of IVF process

Stigma surrounding this topic remains and unfortunately some individuals still feel unable to discuss the issue openly.  Whilst the impact the IVF process has on those going through it varies significantly, a common theme is that IVF is physically, mentally and emotionally draining; and much tougher than people expect.

The legal position

Currently, the law provides employees and workers with limited IVF-specific protection; instead, most of the legal protections for those undergoing IVF derive from the standard employment law protections from being discriminated against.

Sex discrimination

Sex discrimination is unlawful under the Equality Act 2010 (“the Act”) and occurs when somebody is treated less favourably because of their sex. Sex is one of the nine protected characteristics under the Act. In the Act the protected characteristic of “sex” refers to a man or a woman. (Gender reassignment and sexual orientation are not covered by sex and are protected characteristics in their own right.)

An employer who treats a female employee less favourably because she is undergoing IVF treatment (from the point that ova are collected) is likely to be found to have discriminated against her on the grounds of sex. Although there is limited case law on this point, a Tribunal found that an employee was discriminated on the grounds of her sex when she was dismissed because she was off sick following her egg collection procedure.  

Protection under this part of the Act lasts through the IVF process up until the point of embryo transfer; once the embryo has been transferred the individual is legally deemed pregnant and will be protected by pregnancy and maternity discrimination legislation.

Pregnancy and maternity discrimination

A woman undergoing IVF is legally deemed to be pregnant at the point of embryo transfer (i.e. when fertilised ova are implanted).  The employee then gains legal protection from being treated unfavourably under the pregnancy and maternity discrimination.

If the implantation is unsuccessful, the employee retains legal protection under the legislation prohibiting pregnancy and maternity discrimination for a further two-week period following the loss. Our blog on miscarriage explains the legal protections for employees in those circumstances.

Disability discrimination

Another way in which employees may obtain legal protection whilst undergoing IVF is if they are able to demonstrate they have a “disability” for legal purposes.

Infertility is classified by the World Health Organisation as ‘a disease of the reproduction system which results in disability’.  In practice, however, many cases of infertility may not have a distinct medical cause and may be unexplained.

In the legal context, in order for infertility to be deemed a disability, a condition needs to satisfy the definition contained in the Act, which is made up of four different tests:

  • Does the person have a physical or mental impairment?
  • Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
  • Is that effect substantial?
  • Is that effect long-term? (i.e. has it lasted 12 months or more, is expected to last at least 12 months and/or is likely to last for the rest of the life of the person affected?).

If an individual meets the definition of having a disability for the purposes of the Act, they will be protected from discrimination directly or indirectly as a result of their condition.

Given the legal definition of what constitutes a disability, disability discrimination is unlikely to cover infertility per se, but organisations need to be alive to the risk that it could certainly cover underlying causes of infertility such as endometriosis.  In parallel, it could also be deemed to amount to a disability if the individual then suffers from other impairments such as anxiety and/or depression. According to a survey from Fertility Network UK with Middlesex University London entitled The Impact of Fertility Problems 2016: 90% of respondents stated they felt depressed; 42% suicidal.  

As always, the impact of the impairment needs to be assessed in view of the impact it has on the individual. Matters such as this are extremely fact specific and must be considered on a case-by-case basis.

In all cases where an employer is found to have discriminated against an individual, they will be able to bring a claim and seek compensation in the employment tribunal. Awards for successful discrimination claims are potentially uncapped, which means that employers could be at risk of having to pay out large sums of money.

Unfair dismissal - automatic unfair (pregnancy)

Where an employee has been dismissed because of their pregnancy, they can also bring a claim for unfair dismissal. Unusually, it is not necessary for an employee to have 2 years’ service in order to bring a claim for automatic unfair dismissal if she is dismissed because of her pregnancy (unlike the 2 year service requirement for ordinary unfair dismissal). This protection therefore applies to all employees regardless of service and if an employee is dismissed on this basis, it will be deemed automatically unfair.

A key point to note is that, during the IVF process, this protection will not apply until the embryo transfer (i.e. the point at which the woman is deemed to be pregnant).

Is an employee protected from the impact of the process?

Fertility treatment can be a stressful experience, leading to hormones being out of balance and absences for treatment. 

There is no statutory right to time off for fertility treatment, including IVF and, indeed, many employees may not want to tell their employer they are undergoing fertility treatment. If a woman does, however, decide to tell their employer they are undergoing fertility treatment and requests they need time off, the Equality and Human Rights Commission's Employment Statutory Code of Practice makes it clear that their employer should treat that request in the same way as they would treat a request from a man in a similar situation, so as to avoid sex discrimination.

If individuals are treated unfavourably as a result of requesting or taking time off, this could give rise to a discrimination claim as set out above.

Are there any legal protections for the partner?

IVF treatment appointments are not deemed to be ante-natal appointments under legislation. This means that until their partner is pregnant, individuals do not have the right under legislation to take any time off to accompany them to an appointment. Of course, employers can agree otherwise with their employees.

Once, however, an employee’s partner is pregnant via IVF, they will have the right to accompany their partner to an antenatal appointment as set out under the Employment Rights Act 1996.

The need for simplification

As we have explained, the legal position for individuals going through IVF is complicated and depends on what stage of the process has been reached. This means it can be difficult for employees to understand their rights and legal protections (and for employers to ensure they are complying with their legal obligations).

In our view, there is a compelling case for simplifying the current framework to ensure that this is easier to navigate (for both employers and employees during this difficult time).

Fundamentally, it also relies on employees having the confidence and security to inform their employer about the fact they are undertaking fertility treatment (which, for many employees may not be realistic).

In its Employment Statutory Code of Practice, the Equality and Human Rights Commission suggests adopting procedures to cover time off for fertility treatments, including IVF, and to nominate a member of staff who employees can confidentially inform that they are having IVF treatment. This may go some way to alleviating the concerns of those undergoing fertility treatment.

How we can help

Infertility is a sensitive topic. The legal position is difficult for both employees and employers to navigate meaning that costly claims can result if issues are not handled correctly. We would urge all organisations to consider whether they are up to speed with these issues and to identify training needs.

If your organisation requires support and advice in relation to infertility, whether this is a specific employee matter or in relation to implementing policies and procedures or training, please get in touch with a member of our Employment Team who will be able to assist.

This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.

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