Fertility Treatments at Work: How can employers navigate the challenges?

Introduction

Sadly approximately 3.5 million people in the UK are affected by infertility. However, until recently it is a topic that has rarely been addressed in the context of the workplace. Obviously, fertility is an incredibly private issue with some employees wanting to keep it that way and some employers believing it to be a completely personal matter. Unavoidably, however, issues stemming from fertility treatments will impact on all aspects of a person’s life and, if neither side is willing to have an open discussion about it, nothing will change.

What are the challenges with fertility treatments?

Infertility is defined as a couple who are unable to conceive despite having regular and unprotected sex. Fortunately, modern medicine has advanced to a stage whereby fertility treatments may remedy such issues making conception possible in more cases than previously. Despite this, any fertility journey can arduous. It is expensive, lengthy, and demanding and there’s no guarantee that it will work in every case.

Alongside this, women must also contend with logistical and practical issues when balancing such treatments with work commitments. For example, a woman undergoing a course of IVF treatment will likely need to:

1. attend frequent appointments throughout the week;
2. carve out time in their busy day to take private phone calls related to their treatment;
3. store and take medication whilst at work; and/or
4. manage their working relationships which might be difficult especially if there’s a lack of awareness or support as she undergoes IVF and/or she wishes to keep this private.

In addition, the man whose partner is undergoing IVF might also be struggling with his partner going through pain, the emotion of the treatment itself as well as dealing with the emotion should it not be successful.

The role of the employer 

Undoubtedly, an employer’s involvement in this process will impact on whether this is a positive or negative experience for their employee. A notable comment in the CIPD’s report was that one of the women it interviewed explained that, due to the demands of her role, she left her job in order to focus on her IVF treatment.  From this one might deduce that the employer was not sympathetic to the time off needing to be taken or the emotion involved in going through the process.

On the other hand, employers who do value their employees’ health and wellbeing are likely to have recognised and considered an employee’s  concerns and have developed a support framework to allay those fears. For instance, an employee may, among other things, be worried about:

1. not being granted paid time off work to attend fertility treatment appointments;
2. not having a private space at work to take those private phone calls related to her treatment;
3. not having access to a ‘clean room’ to take the fertility treatments during working hours or not having an appointed nurse come into administer the medicine  – although this is quite a generous measure; and/or
4. being perceived poorly at work because of the time taken off.

For all the good an employer can do, they are not mind-readers and there is some onus on employees engaging in open communication as well. Of course, an employee’s willingness to do so will largely be influenced by the culture of their working environment and also whether they can have their concerns dealt with confidentially.

Legal protection

Currently there is no specific legislation dealing with fertility treatment as such but instances of sex discrimination may also occur in fertility cases, but the point at which the legal protection starts is nuanced. For women undergoing IVF treatment, the European Court of Justice held in Mayr v Backerei that the period starts at the time the ova (eggs) are collected until the implantation of a fertilised ovum in the uterus (this decision was adopted into English & Welsh law following the case Shonta v Home Office and Pipkin). So, the less favourable treatment of a women undergoing fertility treatment must occur during this period for her to benefit from the protection.

It has always been wise to set out an employer’s approach to a particular issue in a policy and this might provide protection against allegations such as sex discrimination, but shortly the obligations on an employer in this area are likely become more than just best practice considerations.

Future considerations 

Currently at its second reading in the House of Commons is the proposed Fertility Treatment (Employment Rights) Bill which intends to enshrine in law an employee’s rights to take paid time off to attend fertility appointments as well as the protections afforded to them as they undergo treatment.

Until a time where that Bill becomes law, our advice to employers is to:

1. foster an open working culture where the topic of fertility treatments can be freely discussed;
2. raise awareness on the subject and offer training to educate people about the realities of fertility treatment and how it can impact on a person in the workplace; and
3. ensure that employees are made aware of their statutory right to request flexible working in order to balance fertility treatments and work commitments.
4. consider drafting a policy dealing with these points so that you can be ahead of the curve when such issues become law.

SMB’s employment team is at hand to advise you in navigating this tricky area of employment law as well as assisting with the drafting of a new policy.