Undertaking fertility treatment such as IVF can be stressful and mean that an employee needs to take quite a lot of time off work, often at short notice. It is sometimes thought that appointments for fertility treatment are treated in the same way as ante natal appointments and require an employer to give paid time off, however, this is not the case. Employees do not have a legal right to take time off for fertility treatment, unless their employment contract or employer’s policies provide for this.
The Equality and Human Rights Commission’s (“EHRC”) Employment Statutory Code of Practice recommend that employers treat any request for time off for fertility treatment in a sympathetic way. Whilst it is of course a personal, private matter to be going through fertility treatment, it is often a good idea for an employee to let their employer know so they understand why they may need for more frequent time off.
Some organisations even contribute towards the costs of fertility treatment as part of the benefits that they offer to an employee, or may be able to offer special paid leave for appointments. In fact, the EHRC recommend that employers consider adopting a procedure for those undertaking fertility treatment so that it is clear what rights there are to time off and pay. With at least 1 in 7 couples expected to have difficulty conceiving and the topic being spoken about much more freely, many employers are considering updating their family friendly policies to make provision for employees who are struggling to conceive.
If there is not a policy in place and an employer is not willing to grant paid time off on a discretionary basis for an employee to attend fertility appointments, then an employee would have to use their annual leave or take the time off unpaid, if their employer agreed to this. Alternatively, an employer may allow their employee to work flexibly around their fertility appointments to make up the time. Working from home can sometimes help with this and reduce travel time to and from appointments and also support an employee who may be feeling unwell or tired as a result of their treatment.
There is also no legal right for an employee to take time off to accompany their partner to a fertility appointment, again, unless an employer chooses to provide it. Instead, they would also need to take annual leave or unpaid leave if their employer were not willing to grant paid time off.
If an employee becomes unwell as a result of fertility treatment, then they are entitled to sick leave in the same way as any other illness or medical issue if it causes them to be unable to work. Sickness absence may be paid at statutory sick pay rates or enhanced rates, depending on the terms of an employee’s contract.
There is no specific protection for employees undergoing IVF treatment, or their partners, but a female employee undergoing IVF would be protected against being treated less favourably as a result of them undertaking fertility treatment, as this would be classed as sex discrimination. It is likely that similar protection would also extend to transgender men who have IVF treatment.
Pregnancy and maternity discrimination rights would apply once fertilised eggs are implanted into an individual’s uterus and the employee would be protected from being treated less favourably because of their pregnancy, provided that their employer knows about it. If sadly the embryo transfer was unsuccessful an employee is protected against pregnancy discrimination for 2 weeks after they become aware that the pregnancy as been lost. This means the protection that an employee has against discrimination can come and go over a period of time depending on the treatment and its success. This is a complex area which is also likely to be highly emotive for the individuals concerned and so it is important to know exactly where you stand.
If you are unsure about your rights during fertility treatment, or you are an employer and want to know more about your obligations, please contact a member of the Employment Team on 0345 646 0406 or fill in our online enquiry form to discuss your options and what might work best for you.