Blog post written by JMW Solicitors LLP
Fertility in the workplace has attracted headlines in recent months, highlighting issues faced by individuals and couples undergoing fertility treatment, which are compounded by a lack of awareness and understanding within the workplace.
The Fertility Network has reported that more than 3.5 million people in the UK are facing fertility issues, with a large majority of them within their employment. Their research has shown that most employees are reluctant to speak to their employer about their fertility struggles because of uncertainty about the potential detrimental effect on their career. Also, that many employees end up reducing their hours or quitting their job if they are unable to balance work and fertility issues.
There is no statutory right to time off work for fertility treatment, but employers should treat medical appointments for IVF treatment like any other medical appointment. An employer should also treat sickness from IVF treatment no different to any other sick leave. However, frequent requests for time off, particularly if unexplained, may lead to an employer triggering disciplinary procedures or even considering an employee’s capability to do the job.
Infertility is not classed as a disability under the Equality Act 2010 and therefore an employee is unable to bring a claim for disability discrimination. In addition, if an employee is dismissed or disadvantaged because of going through IVF but not yet pregnant, they have no right to claim for pregnancy and maternity discrimination but may have a sex discrimination claim.
The Fertility Workplace Pledge
Nickie Aiken, Member of Parliament for the Cities of London and Westminster, has launched a Parliamentary Campaign aimed to give individuals and couples undergoing fertility treatment statutory time off work. Nickie has found that many women are facing discrimination at work and even being forced out of their jobs because of a lack of rights to take IVF treatment.
Employers that sign the pledge commit to taking the following four steps:
- Accessible Information: Having accessible information including a workplace fertility policy to create an open culture free from stigma.
- Awareness in the Workplace: Raising awareness in the workplace through establishing the role of a fertility ambassador who can begin internal conversations and promote available support.
- Staff Training: Ensuring that line managers are trained so that they understand the realities of treatment and can support colleagues through the physical, mental and financial impacts.
- Flexible Working: Providing staff with the right to request flexible working so they can attend appointments.
Nickie is also responsible for spearheading the Fertility Treatment (Employment Rights) Bill, currently undergoing the second reading in the House of Commons. If passed, the Fertility Treatment Bill would provide employees with a statutory right to take time off from work for appointments to undergo fertility treatment, similar to the rights available to pregnant employees for antenatal appointments.
What steps can Employers take to increase Fertility in the Workplace?
Several of the UK’s major employers including Metro Bank, NatWest Group, Co-op, Channel 4, and UK Hospitality have already shown their commitment to the initiative by signing up to the voluntary commitments above.
Although the Fertility Workplace Pledge does not currently place a legal obligation on employers, those who wish to take a proactive approach may want to sign up to the pledge and consider the implementation of IVF and assisted conception policies. The purpose of any policy should outline the support available to employees who are undergoing, or who are companions to individuals undergoing fertility treatment.
Effective IVF and assisted conception policies will make arrangements for employees to take time off and to receive pay while undergoing fertility treatment and may include optional provisions for employees to be given paid time off if they undergo a failed treatment cycle.
There are common misconceptions about IVF and other fertility treatments that often regard them as a “lifestyle choice” for older women who have waited too long before trying to start a family, rather than recognising infertility as a health issue. In addition to workplace policies, employers can increase education and awareness of fertility issues in the workplace. This can be done in several ways. For example, by implementing a Fertility Ambassador to raise awareness and facilitate communication amongst staff, by offering relevant training to managers on how best to support employees and holding open and honest discussions with employees undergoing fertility treatment.
This article is for general guidance only and should not be used for any other purpose. It does not constitute and should not be relied upon as legal advice.
If you would like to discuss this article or any recruitment issue in more detail, please contact Simon Bloch of JMW Solicitors LLP either by email at firstname.lastname@example.org or by telephone on 0161 838 2628.