If an employer discriminates against an employee on the grounds of that employee having IVF treatment will this fall foul of anti-discrimination laws?

IVF Treatment

What is IVF Treatment?

IVF stands for In Vitro Fertilisation. The literal translation of in vitro is that it means “in glass”. The process is defined as a process made to occur outside the biological process. Therefore, in vitro fertilisation means the fertilisation process that occurs under lab conditions and not inside the mother’s womb.

The Procedure of IVF

When a couple decides upon IVF treatment the woman will receive multiple injections of fertility drugs before having her eggs retrieved. Once the eggs have been collected, they are then combined with the sperm, left to culture and then transferred back to the woman’s womb for implantation.

What does the law say?

Protection for Pregnant Workers

In the UK pregnant workers are currently protected under the Sex Discrimination Act 1975 and the Employment Rights Act 1996.

The Sex Discrimination Act explicitly prohibits discrimination on the grounds of pregnancy with the protection under the Employment Rights Act making it automatically unfair to dismiss a woman when the reason – or the principal reason – for the dismissal is in connection to her pregnancy.

What is the case if a woman has become pregnant following IVF Treatment?

If a woman has become pregnant following IVF Treatment then both the Sex Discrimination Act and the Employments Rights Act will apply. Both acts apply to a woman who is pregnant regardless of how she became pregnant.

What happens if a woman is discriminated against as she has been absent from work while undergoing IVF Treatment?

Using the above legislation we can clearly see that discrimination on grounds of a woman being pregnant is direct discrimination without the need to identify a male comparison.

However, what we can see from the case law on the subject of gender-specific illnesses even one which is related to pregnancy when there is less favourable treatment on account of that absence it will not constitute sex discrimination if a male worker would have been treated in the same way.

Does a woman having IVF treatment fall into the category of a gender-specific illness?

This is a difficult question to answer as many would feel that it would be unfair to regard a woman who is undergoing treatment to become pregnant as having an illness. However, it may be unfair to when looking at the male position that woman who are not pregnant are provided with better treatment in the workplace when men who have an illness specific to them are provided with less favourable treatment.

This has been a question which has been answered in a recent case.

So, what is the current position?

In this recent case the Employment Tribunal followed a decision handed down by the European Court of Justice where it was held that an employee undergoing IVF treatment would not be protected under the Pregnant Workers Directive (The European Union legislation) until implantation of the ovum had occurred.

However, it was also decided that an employee who was at an advanced stage of IVF treatment would be protected under the Equal Treatment Directive. In these circumstances it would be direct discrimination to subject a female employee to a detriment due to her undergoing IVF treatment at an advanced stage.

What is meant by an advanced stage of IVF Treatment?

An advanced stage of IVF Treatment was said to be in this case between the retrieval of the ova and the immediate transfer of the fertilised ova into the uterus.

Was the decision of the European Court of Justice accepted in the UK Case?

The Employment Tribunal in the UK Case held that the narrow formulation of the judgment of the European Court of Justice was deliberate and ensured legal certainty.  It was therefore held in the UK case that the protection of female employees should not be widened to include the entire duration of the IVF treatment.

What is the position under UK law?

The position under UK law is as follows:

  • Employee who has become pregnant following IVF Treatment – provided with protection under the Sex Discrimination Act

  • Employee who has reached an advanced stage of the IVF Treatment – provided with protection from less favourable treatment under the Employment Rights Act

  • Employee who has not yet reached an advanced stage of the IVF treatment – less favourable treatment will not constitute sex discrimination if a male worker with a medical condition would be treated in the same manner