Fertility treatment: an issue ripe for legal challenges

The number of people undergoing fertility treatment in the UK increases steadily each year. The vast majority of these cases still involve heterosexual couples but new trends are emerging. According to a report from the Human Fertilisation and Embryology Authority, more same-sex couples, single women and surrogates are taking advantage of improving fertility treatments than ever before. In 2017, more than 54,000 patients underwent around 75,000 fertility treatments in the UK. This trend means it is increasingly likely that employers will be faced with requests for time off work from employees seeking to undergo fertility treatment. It is important, therefore, for employers to understand their obligations and how to handle requests sensitively.

Fertility treatment

According to Fertility Network UK, a whopping one in six couples experience infertility. It is therefore a common issue faced by employees, whether or not employers are aware of it.

The phrase ‘fertility treatment’ covers a myriad of treatments available to enable a person to have a child. A summary of the main fertility treatments currently available in the UK is set out in the box on p18. Whether an individual is entitled to free fertility treatment is something of a postcode lottery: in 2017, 62% of treatment cycles were NHS-funded in Scotland, 50% in Northern Ireland, 39% in Wales and only 35% in England.

The fastest-growing fertility treatment in the UK is egg freezing, which rose from fewer than 300 cycles in 2010 to 1,463 cycles in 2017.

Reports that tech giants such as Apple, Facebook and Google are offering free egg freezing may lead cynics to suspect they want their female staff to delay giving birth so they can put work first. However, it can also be argued that the policy indicates a growing awareness, at least by some employers, that fertility issues are a concern for employees.

Employees undergoing fertility treatment may feel stressed and emotional about issues such as the underlying cause of their infertility, financial concerns about the cost of private treatment and whether the treatment will be successful. They may also feel incredibly unwell owing to the treatment. These issues can be exacerbated by concerns about the ability to take time off work. Some employees may feel uncomfortable talking to their manager about the fact they are undergoing fertility treatment and may instead apply to take annual leave. I have had numerous clients say to me they want to conceal the fact they are having fertility treatment from their employer due to concerns they may be discriminated against.

Time off for fertility treatment

More confident employees (both female and male) may specifically request time off for fertility treatment. The starting position is that there is no statutory entitlement to time off to undergo such treatment. The right to take time off for antenatal appointments, for example, does not apply unless an employee is actually pregnant.

If an employee requires time off for fertility treatment, they will usually need to take annual leave, unless the employer agrees to grant special or unpaid leave. Alternatively, if the employee is unwell as a result of fertility treatment, she may be able to take sick leave. In such cases, the employee will be required to comply with the relevant sickness absence reporting requirements to qualify for company and statutory sick pay (as appropriate).

Dealing with requests for special leave

I would advise employers to encourage employees to be open about requests for time off for fertility treatment, so they can offer support and plan around the treatment. Employers should also consider any requests carefully and not dismiss them outright. Many employers are now developing ‘special leave’ policies to deal with requests for such absences. In the June 2019 edition of Employment Law Journal, I set out some considerations for preparing such a policy (‘Create or update a special leave policy’, ELJ201).

Employers can deal with requests for time off to attend fertility treatment in the same way as requests for other medical appointments. If they have a special leave policy, they can note that medical appointments should be taken outside office hours where practicable. An employee undergoing fertility treatment may require multiple appointments, but these can be treated in the same way as multiple medical appointments. An employee who is off sick as a result of fertility treatment should be treated in the same way as an employee on sickness absence.

Protection against pregnancy discrimination

A woman who is pregnant is protected by law from being discriminated against because of her pregnancy. Pregnancy and maternity is one of nine ‘protected characteristics’ covered by s4 of the Equality Act 2010 (EqA). There is no actual definition of pregnancy and maternity in the EqA. However, it is apparent from the legislation that a woman must be pregnant to be protected against pregnancy discrimination and this has now been confirmed by case law (see below).

Pursuant to s18 of the EqA, it is unlawful for an employer to discriminate by treating a woman unfavourably during the protected period (from the beginning of pregnancy to the end of maternity leave) because of her pregnancy or a pregnancy-related illness.

Unfavourable treatment due to pregnancy is expressly not direct sex discrimination (s18(7) of the EqA). However, a woman may still be able to claim direct discrimination on the grounds of pregnancy and maternity. In essence, this provision seeks to clarify that cases involving alleged pregnancy discrimination should be brought as a pregnancy discrimination claim and not a sex discrimination claim.

Furthermore, pregnancy and maternity are excluded from the indirect discrimination provisions contained in s19 of the EqA.

At what point is a woman deemed pregnant?

A woman undergoing fertility treatment is only protected against pregnancy discrimination once she is deemed to be pregnant. However, an employer may not know when an employee is pregnant and therefore it is advisable to be cautious if the employer is aware or suspects the employee may be undergoing fertility treatment.

The European Court of Justice (ECJ) determined in Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG [2008] that a woman undergoing fertility treatment is deemed to be pregnant when her eggs are harvested and fertilised prior to the embryo being transferred into her uterus. The protected period therefore begins shortly before the embryo is placed into the woman’s womb. Typically, this is a few days before. The ECJ was clear the protected period does not start at the point eggs are frozen, if that occurs. The embryo may continue to grow into a healthy baby or it may fail but, in either case, the woman is deemed to be pregnant at least by the time the fertilised eggs are planted in her body.

Furthermore, if a female employee is on sick leave as a result of fertility treatment (defined in Mayr as follicular puncture followed by immediate implantation of an embryo), this leave arises because she is a woman. In such circumstances, if an employer dismisses her because of her sickness absence, this could be sex discrimination. The Employment Appeal Tribunal has endorsed this approach in Sahota v Home Office [2009], holding that the ‘important’ stage is ‘between the follicular puncture and the immediate transfer of the in vitro fertilised ova’ (ie the embryo).

This has been reinforced via the Equality and Human Rights Commission’s Employment Statutory Code of Practice, which provides that:

• a woman undergoing IVF is protected from the point the embryo is implanted, when she is deemed ‘pregnant’; and
• if implantation fails, the protected period ends two weeks later in accordance with s18(6) of the EqA. Therefore, even if the IVF treatment is unsuccessful, the woman is still deemed ‘pregnant’ for a period of time.

In Karavadra v BJ Cheese Packaging Ltd [2019], an employment tribunal held that where an employee was dismissed following time off for successful fertility treatment, the dismissal was because of her pregnancy. This case highlights the fact that if an employer dismisses an employee after granting time off for fertility treatment, a tribunal is likely to take a dim view of this in the absence of any fair reason for dismissal.

In practice, an employee is not obliged to inform the employer of the nature of her fertility treatment. The employer may therefore not know when she is deemed ‘pregnant’ and so should take care to avoid pregnancy discrimination. One area which is ripe for clarification by the courts is whether an employee whose IVF fails and who is dismissed on returning to work is deemed to be discriminated against on grounds of pregnancy, even if the protected period as defined in the Code of Practice is over. Alternatively, it is possible that she may have a claim for sex discrimination.

Surrogacy

As things stand in the UK, ‘commissioning mothers’ – women having a baby through a surrogate – are not entitled to protection against pregnancy and maternity discrimination.

The ECJ in CD v ST [2014] and Z v A Government Department [2014] determined that:

• the Pregnant Workers Directive is only intended to protect the health of women who have gone through pregnancy;
• commissioning mothers are not entitled to maternity leave, so refusing to grant them this will not amount to sex discrimination; and
• denying commissioning mothers maternity leave is not disability discrimination – infertility is
  not a disability because it is not a hindrance to the woman’s personal life.

Employers have some freedom, therefore, to determine not to allow a woman to take maternity leave after the birth of her child through a surrogacy arrangement, even though she may be breastfeeding and caring for the child. However, in many cases, employers will grant leave on a discretionary basis.

The Law Commission and the Scottish Law Commission have published a consultation paper on potential reforms to employment law relating to surrogacy arrangements, including the possibility of maternity leave for commissioning mothers. The consultation closed in September 2019. It is possible therefore that commissioning mothers may soon benefit from leave. However, it is likely that they would still not benefit from protection against pregnancy discrimination because they do not become pregnant.

How to minimise the risk of claims

There are a range of treatments that an employee undergoing ‘fertility treatment’ may be having. The employee will not be entitled to paid time off to undertake treatment, but they should be treated in the same manner as other employees. Likewise, if an employee is unwell owing to fertility treatment, they are entitled to time off as sick leave. An employer who is on notice that a female employee is undergoing fertility treatment would be well advised to treat her as though she is already entitled to protection against pregnancy discrimination. Where an employer has concerns about time off, conduct or performance, it is better to address this with the employee when the issue arises. Employers who dismiss pregnant employees often say there were performance issues pre-dating the pregnancy. However, if the employer fails to document these, it may ultimately face a sceptical employment tribunal.

For further advice, please contact Michelle Last using the contact details below.

This article was first published in Employment Law Journal (February 2020).