Supporting Employees Undergoing IVF Treatment: Legal and Practical Considerations for Schools

Fertility challenges are a sensitive and very personal issue faced by many individuals and can have long lasting effects on their physical and emotional wellbeing. The use of assisted conception such as in vitro fertilisation (IVF) is increasing in the UK. The process of IVF treatment can be emotionally, physically and financially taxing often requiring time for medical appointments and recovery.

This article explores steps schools can take to support colleagues.

A survey undertaken by the Fertility Network UK in October 2022 reported that 77% of those surveyed disclosed to their employer that they underwent IVF treatment, however, only 45% reported receiving excellent support from their employer and only 25% reported that their employer had a supportive workplace policy, while 19% were unsure if such policies existed.

The Humann Fertilisation & Embryo Authority (HFEA) reports that average IVF pregnancy rates using fresh embryo transfers increased nationally to 31% per fresh embryo transferred in 2022, with the highest pregnancy rates among patients aged 18-34 at 42%.

Continuing as usual at work and at home while going through fertility treatment can be challenging. It is therefore important for schools to be aware of their legal obligations to staff undergoing IVF treatment, and to adopt workplace policies that deal specifically with practicalities such as, for example, time off for treatment and sickness absence related to the treatment.

When pregnancy and maternity rights apply

An individual undergoing IVF treatment acquires pregnancy and maternity protections under the Equality Act 2010 (“EqA 2010”) after the embryo transfer stage, even if they are not confirmed pregnant at that stage.

These protections then continue:

• If the transfer is successful: throughout the pregnancy and maternity leave in the same way as non-IVF pregnancies;
• If the transfer is unsuccessful: for two weeks after finding out the embryo transfer was unsuccessful. This means that during this time any sick leave should be logged as pregnancy related and excluding from your usual trigger points.

Fertility treatment can often involve having to repeat the process several times before it is successful. That means that pregnancy rights may come and go over a period of time, and it is important for schools to be aware of this fact.

Right to time off

There is no legal right for time off for IVF treatment or related sickness. Many employers are increasingly offering a reasonable period of paid time off under their workplace policies, as a means of supporting staff undergoing IVF treatment. In the absence of a policy or a provision in the employee’s contract providing for paid time off for treatment and/or related sickness absence, the time off should be treated in the same way as any other medical appointment or sickness absence under your policies.

It may be appropriate to also consider offering paid time off under your other policies such as the Special Leave Policy or agreeing with the employee that they can work flexibly on the days they are undergoing treatment. However, informal arrangements with employees on an individual basis can be risky so it is best to adopt a formal procedure that ensures parity of treatment for all staff undergoing IVF.

If the pregnancy is successful, however, the same rights to paid time off for ante-natal appointments and for pregnancy related sickness absence apply as with non-IVF pregnancies.

Workplace fertility support

The Equality and Human Rights Commission (EHRC) statutory Code of Practice, which employment tribunals must take into account when determining a complaint of discrimination recommends that employers treat requests for time off for IVF treatment sympathetically and further that employers may wish to establish procedures for allowing time off for IVF and fertility treatment. These procedures may enable women to notify designated members of staff on a confidential basis that they are having treatment (paragraph 17.2.9). Adopting such procedures will also likely create a more inclusive and supportive workplace culture and assist schools in demonstrating compliance with their public sector equality duty.

In addition, schools should consider the following to further manage risk, raise awareness and educate people managers about fertility treatment and the law:

• Consider including fertility challenges (in a sensitive and appropriate way) in your workplace wellbeing strategy.
• Create an open, inclusive and supportive culture to break down stigma and let employees know they will be supported.
• Adopt policies and procedures that will serve as a clear framework for staff and managers.
• Manage absence and leave in a compassionate and human way.
• Educate people managers so they have the confidence to manage these sensitive situations empathetically.
• Take specialist legal advice at an early stage should matters become complex or allegations of discrimination are made.

Claims and complaints

Treating an employee unfavourably or less favourably because of IVF treatment, or failing to offer the necessary support and understanding, can result in a breakdown of workplace relationships, workplace disputes and formal grievances, all of which will cost your organisation time and resources, and expose it to legal risk.

It can also give rise to a number of legal claims, including but not limited to:

1. Constructive unfair dismissal

• A failure to comply with your legal obligations or to support an employee during their treatment may amount to a breach of contract and the implied term of mutual trust and confidence that exists between employer and employee. If the employee resigns in response to such a breach they may have a claim for constructive unfair dismissal.

2. Sex or Age Discrimination

• Unfavourable treatment of employees undergoing IVF may constitute sex discrimination. For example, dismissing someone or denying a request for time off for fertility treatment may amount to sex discrimination under the EqA 2010.
• There may also be an argument of age discrimination, as female employees undergoing IVF typically fall within a specific age bracket.

3. Pregnancy and maternity discrimination

• Unfavourable treatment because of pregnancy and maternity, or because of a pregnancy related illness, will amount to pregnancy and maternity discrimination. Unlike other forms of discrimination, pregnancy and maternity discrimination claims do not require a comparator making it easier for the complainant to meet the evidential burden of proof.

4. Disability Discrimination

• In some cases, infertility may qualify as a disability under the EqA 2010 if it has a substantial and long-term adverse effect on daily activities.
• Moreover, the physical and emotional impact of IVF could result in conditions such as stress, depression or anxiety, or physical complications, that render the employee disabled. In such case they will be protected from unlawful discrimination and the school’s obligation to make reasonable adjustments will be triggered.

5. Marriage and civil partnership or sexual orientation discrimination

• Depending on the circumstances of the case, other forms of discrimination could also arise such a discrimination because of marriage and civil partnership, or because of sexual harassment.

Conclusion

Employers are increasingly implementing IVF policies either as standalone policies or adding to their existing pregnancy and maternity leave policies to cover fertility treatment. By implementing clear policies, fostering open communication, and providing flexibility schools can significantly help employees balance their professional responsibilities during the often stressful period of fertility treatment, while also reducing the risk of legal claims against your organisation.

If you require further advice or assistance including with reviewing your policies or with any other schools HR or employment law matter, please contact the Schools HR team on schoolshr@wslaw.co.uk or 0345 026 8690.