Family friendly rights: fertility in the workplace – employment law update 2023

Over a year since our article in March 2022 (Fertility Treatment – Is an employee’s fertility journey relevant to the workplace? – Curzon Green Solicitors – The City of London, High Wycombe and Marlow) the landscape relating to fertility in the workplace has progressed. More and more employers are introducing fertility policies amid calls for greater legal protection for employees undergoing fertility treatment. According to recent research from the CIPD, 60% of employers now have a formal policy in place. 

However, in the same research from the CIPD, 47% of people undergoing fertility challenges or treatment did not tell their manager or HR of their situation, with 26% concerned about the possible impact on their career and 19% worried their employer would not be understanding or offer appropriatesupport. CIPD is calling for organisations to offer practical support to their staff, such as offering paid time off for appointments, flexible working options and training for managers so they can assist staff with sensitive issues and create understanding environments where people can seek support. 

From an employer’s point of view this is important. Failure to support can lead to a loss of talent, loss of experience and loss of diversity. Employers are competing for the best people to recruit, and employees are searching for employment benefits beyond pay. Flexible benefits with a focus on social responsibility are high in demand, and progressive benefit offerings are often valued as important, or more important, than pay. Employers with up-to-date family friendly policies are attractive to job searchers, along with signals of a supportive and progressive workplace. Fertility benefits should help promote LGBTQ+ equality and, with Mental Health Awareness Week in mind, assist with the promotion of an open culture encouraging mental wellbeing at work,reducing stress and anxiety, increasing productivity. 

Current legal position 

There is no specific protection for employees going through fertility treatment. However, there are a number of potential claims an employee may have already including sex discrimination, pregnancy and maternity discrimination and unfair/constructive dismissal. 

Employees who are pregnant have specific legal protection against unfavourable treatment which is enshrined in section 18 of the Equality Act 2010. The protection applies during what is called the “protected period” which starts from the beginning of pregnancy and ends when the employee’s maternity leave finishes or, if she miscarries early and does not qualify for maternity leave, two weeks after the end of the pregnancy. In 2008, the European Court of Justice looked at when protection kicks in during fertility treatment. The ECJ thought that a woman was technically pregnant when the fertilised ova are implanted into her uterus. This approach was later adopted in England and Wales by the Employment Appeal Tribunal in Sahota v Home Office, where the EAT considered the position where the treatment fails. The EAT was prepared to accept that a woman can be deemed pregnant during the period between the date of implantation and the date when it is discovered that implantation was unsuccessful.In practice, this means that a woman undergoing IVF is within the protected period from implantation until at least two weeks after the implantation has been determined to have failed.

The Fertility Treatment (Employment Rights) Bill

A Private Member’s Bill, the Fertility Treatment (Employment Rights) Bill, aimed at improving workplace protections for workers undergoing fertility treatment, is currently making its way through Parliament. A second reading is due in November 2023. If brought into law, the Bill would give employees going through fertility treatment the specific right to paid time off to attend appointments. Their partners would also be entitled to take unpaid leave to accompany them. The Bill would mean that those undergoing fertility treatment would be protected from discrimination in a similar way to pregnant employees.

Many countries have already introduced specific legal protection for those going through fertility treatment. For example, Malta allows women undergoing IVF up to 60 hours of paid leave, and 40 hours of paid leave for their partner. 

That said, it remains the case in the UK that many Private Members’ Bills do not ultimately become law. The fact that the legislation has been proposed, however, has already prompted much commentary and discussion. We have seen this highlighted on BBC Breakfast earlier this week. Themeasures are at minimum positive steps towards ensuring that fertility treatment is more understood and sensitively handled in the workplace; together with an increase in formal policies being adopted by employers, this is positive news. It is similarto the recent promotion of menopausal awareness in the workplace, which has been a successful campaign in bringing this important topic to the table and in changing the face of the workplace/modern employment culture. 

What can employers do now?

Legislative change seems likely in the future but, in the meantime, we expect more and more employers to introducefertility policies as part of their family friendly suite and to promote diversity, equity and inclusion. It will become more and more important to stay competitive and to attract and retain valuable talent. Line managers also need to be trained to understand the matters which can arise in connection with fertility treatment within the workplace, so that they can respond in a way that is sensitive and supportive of employees’ mental and physical health. If employees feel supported at work, including by way of adjustments and/or flexibility, morale is usually boosted and the business can be more productive (and profitable).

For specific advice arising out of fertility treatment in the workplace, or for assistance in drafting and implementing bespoke policies or training for your business, please contact our specialist employment law team who would be pleased to assist.