Does an employer discriminating against an employee for having IVF treatment fall foul of anti-discrimination laws?

What is IVF treatment?

IVF (in vitro fertilization) involves carrying out the fertilisation process under lab conditions and not inside the mother’s womb. The woman will receive multiple injections of fertility drugs during IVF treatment before having her eggs retrieved. Once the eggs have been collected, they are combined with the sperm, left to culture and then transferred back to the woman’s womb. This process can typically take between four and seven weeks for one cycle. IVF treatment, however, does not always result in a pregnancy.

What does the law say?

Before implantation

There is no statutory right for employees to take time off work to undergo investigations or IVF treatment. However, the Equality and Human Rights Commission Code does recommend that employers treat employees’ requests for leave for IVF treatment sympathetically and ACAS guidance states that employers should treat IVF-related medical appointments in the same manner as any other medical appointment under the terms and conditions of the contract of employment. Flexible working arrangements or a combination of paid, unpaid, or annual leave during the treatment should be considered.

Similarly, where an employee is unable to work due to the effects of the treatment and signed off sick by the GP, employers should consider this sickness absence in the same way they would any other employee sickness in accordance with the normal company rules.

However, a woman on sick leave during an advanced stage of IVF treatment (ie, the period between the retrieval of the ova followed by the immediate transfer of the fertilised ova) may have a claim for direct sex discrimination if they are fired, because they are given special protection during the protected period.

After implantation

The Equality Act 2010 makes it automatically unfair to dismiss a woman when the reason – or the principal reason – for the dismissal is in connection to her pregnancy.

A woman is treated as being pregnant from the point of implantation and is protected from dismissal or adverse treatment under the Equality Act 2010 pregnancy legislation; whether she actually falls pregnant or not is irrelevant.

Employees should notify their employer once they have reached this stage. The pregnancy test is usually taken two weeks after implantation.

If the treatment is successful and the woman remains pregnant she will be protected against discrimination on the grounds of pregnancy until the end of her maternity leave.

If the treatment is unsuccessful, the protection will end two weeks after the end of the pregnancy. A pregnancy test is taken two weeks after implantation and, if the test is negative, the protected period extends for a further two weeks.

Summary of the position under UK law

The position under UK law is as follows:

  • An employee who has become pregnant following IVF Treatment is provided with protection under the Equality Act 2010.
  • An employee who has reached an advanced stage of the IVF treatment is provided with protection from less favourable treatment.
  • Where an employee who has not yet reached an advanced stage of the IVF treatment, less favourable treatment by an employer will not constitute sex discrimination if a male worker with a medical condition would be treated in the same manner.