The rates of those undergoing IVF treatment have increased ten-fold in the last thirty years. Therefore it is becoming increasingly important that employers are aware of their obligations in this area.
There is no statutory right for time off for IVF treatment, but the Equality and Human Rights Commission Code suggests that employers view any such requests “sympathetically”. Some companies have dedicated policies regarding such treatment in which an employee is allowed to take time off work for up to five days. If there is no dedicated IVF policy in place the requests should be handled in the same way as any other requests for time off for medical treatments or appointments.
There are key stages in the IVF process which afford employees certain protections under the law. For example, a woman who is having IVF is protected from sex discrimination at the time of follicular puncture. This is when the ova are collected. This protection lasts until implantation.
It is also important to note that someone undergoing IVF treatment gains pregnancy rights once the last part of the process is complete. This is known as the embryo transfer and when this stage is complete it is still not guaranteed to result in a pregnancy. If a pregnancy does not result from this treatment the employee is still afforded with pregnancy rights until two weeks after the unsuccessful transfer. Employers need to be aware of this protected period in order to avoid any claims of pregnancy discrimination.
In the case of Mayr v Bäckerei und Konditorei Gerhard Flöckner the employee had the follicular puncture procedure. She was due to get the fertilised ova implanted five days later. During this time, she was off sick and was dismissed on the third day of absence. The embryo transfer had not occurred therefore the employer was not guilty of pregnancy discrimination; however they were guilty of direct sex discrimination. The court noted that she was dismissed “essentially because she was undergoing that important stage of in vitro fertilisation treatment”.
Employers should treat these issues with sensitivity and ensure they are familiar with their responsibilities.
If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.