Fertility treatment & the workplace: Understanding employee rights

In recent years, there has been a significant increase in individuals seeking fertility treatment. This trend includes not only heterosexual couples but also same-sex couples, single mothers, and those opting for surrogacy.

As more employees navigate fertility treatment, it becomes increasingly important for employers to understand the legal requirements and best practices for providing support in the workplace.

Employers may be unsure about their duties and responsibilities regarding employees undergoing fertility treatment, which can be a highly stressful experience. Employees often face significant emotional and physical challenges, along with financial pressures, especially if they choose private treatment.

Balancing the demands of fertility treatment with workplace responsibilities can be difficult, particularly when time off is needed for medical appointments or due to feeling unwell. Indeed, many employees may choose to keep their treatment details private out of concern for potential repercussions, which can make it difficult for employers to support their staff.

Time off for fertility appointments

Currently, there is no statutory entitlement to time off specifically for fertility treatment. A common misconception is that employees can take time off for antenatal appointments and this includes fertility appointments, but this right only applies once a pregnancy has been confirmed. Therefore, employees undergoing fertility treatment must use their holiday entitlement or request unpaid leave for such appointments.

If treatment leaves them unwell, their absence would fall under the company’s sickness policy, determining their eligibility for statutory or company sick pay. Similarly, fertility-related sickness absence should be managed according to the company’s established sickness policy. Employers should handle requests for time off for fertility treatment appointments in the same manner as any other medical appointments.

Some employers are beginning to introduce special leave policies for those undergoing fertility treatment to help employees understand their options and plan accordingly. It is advisable for such policies to recommend scheduling appointments outside of working hours whenever possible to minimise workplace disruption.

Legal protections against discrimination

Employers must approach fertility-related issues with caution, as employees undergoing treatment may be protected under the Equality Act 2010. The European Court of Justice (ECJ) ruling in Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG [2008] determined that a woman undergoing fertility treatment is considered to be pregnant from the moment her eggs are harvested and fertilised, just before the embryo is transferred to her uterus.

This “protected period” begins shortly before implantation. Regardless of the outcome, once fertilised eggs are placed in her body, the woman is legally regarded as pregnant. Although, it’s worth noting that this protected period does not apply if the eggs are merely frozen, they need to be fertilised and about to be implanted.

Additionally, dismissing an employee due to fertility-related sickness absence could lead to claims of sex and/or pregnancy discrimination. In Sahota v Home Office, the Employment Appeal Tribunal (EAT) supported this view, noting that the “important” phase in fertility treatment occurs “between the follicular puncture and the immediate transfer of the in vitro fertilised ova.” While employers may not have access to specific treatment details, it is wise to treat employees undergoing fertility treatment as if they qualify for pregnancy discrimination protection if the employer is aware of their situation.

Fostering a supportive workplace environment

Given the increasing number of employees seeking fertility treatment, fostering a supportive workplace environment is crucial. Clear policies and a sensitive approach can help employees navigate this challenging journey, while proactive planning can reduce workplace disruption. Open and empathetic communication, supported by well-defined policies, can enhance employee morale and loyalty, ultimately contributing to a more inclusive and supportive workplace culture.

Indeed, due to the increased uptake of fertility treatments, it’s probably only a matter of time before we see specific legislation and further case law expanding the rights of those undergoing such treatment, so businesses would do well to get ahead of the curve.

If you have any questions or queries, please don’t hesitate to get in touch with our expert team.

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