Employment e-Brief – IVF and the Workplace

The Legal Position

While the legal rights of and obligations towards pregnant women in the workplace are generally well understood, IVF treatment – which may or may not result in a pregnancy – remains something of a grey area for many employers.

The issue of IVF treatment received attention in the recent case of Mayr v Backerei und Konditorei Gerhard Flockner OGH. In this case, the ECJ considered the nature and effect of IVF treatment and held that:

• A woman undergoing IVF treatment should be regarded as “pregnant” when in vitro fertilised eggs are transferred into her uterus;
• When a woman is on sick leave in relation to an advanced stage of IVF treatment, that absence affects only women. To dismiss a woman for this reason is direct sex discrimination and it is not necessary for these women to point to a male comparator when bringing a claim because they are afforded special protection during the protected period.

The recent case of Sahota v Home Office and Pipkin has clarified the position even further. In this case, the tribunal considered when the period of special protection begins and ends for a woman in circumstances where implantation is not successful. (in an ordinary pregnancy, it begins with notification of the pregnancy and ends at the end of maternity leave). The facts of the case were that the Claimant’s fertilised eggs were implanted into her uterus on 26 February 2008. On 17 March 2008, the Claimant was told that the implantation had failed. The Tribunal found that the protected period began on 26 February 2008 and came to an end two weeks after the end of the pregnancy (i.e. on 31 March 2008). Throughout this period, the Claimant fell within the protection against discrimination afforded to pregnant women under s.3A Sex Discrimination Act 1975. The tribunal’s findings can therefore be summarised as follows:

• A woman undergoing IVF treatment should be regarded as “pregnant” when in vitro fertilised eggs are transferred into her uterus;
• As a pregnant worker, the woman is entitled to paid time off for ante-natal care in accordance with s.55-57 of the Employment Rights Act 1996;
• A woman who becomes pregnant as a result of IVF treatment is not required to point to a male comparator when bringing a claim of sex discrimination;
• If implantation is not successful, the protected period ends 2 weeks after the end of the pregnancy (i.e. 2 weeks after the date on which the woman is informed that implantation has failed).

Practical Issues

As can be seen from recent case law, a woman who has had in vitro fertilised eggs transferred into her uterus is regarded as pregnant and is therefore entitled to paid time off for ante-natal care. There is not, however, a statutory right to paid time off work in connection with infertility investigations or treatment. If an employee becomes ill during or as a result of infertility treatment, they should receive SSP or contractual sick pay in the same way afforded to all other employees.

As a practical point, employers may therefore be advised to review their policies for medical appointments in connection with infertility treatment or consider introducing a policy which regulates the amount of time off that may be taken for all medical appointments.

Please contact a member of the Employment Law team if you have any queries or require assistance in drafting a policy to manage employee sickness absence.