Surveys carried out by a leading fertility benefit company in 2021 have revealed that 72% of employees felt that the impact of fertility issues on their working life was “high” or “very high”. A great proportion of employees also confirmed decreased job satisfaction, reduced engagement at work and some had even considered leaving their employment, as a result of fertility treatment.
Clearly, this is a significant issue in times where fertility treatment is on the rise, with 1 in 6 couples currently experiencing infertility.
With this in mind, employers should consider the impact on employees (including on their mental health) and what measures can be taken to support them in the workplace, to ensure the retention of experienced staff and to boost productivity and employee satisfaction.
What does employment law say about fertility treatment?
Employment law does not currently have many specific provisions relating to employees undergoing fertility treatment. For example:
- Infertility is not a standalone protected characteristic under the Equality Act 2010. It is not a disability covered under section 6 of the Equality Act 2010, nor is it fully protected by the characteristic of pregnancy and maternity under section 4 of the Equality Act 2010, given these characteristics only apply to those within the protected period (i.e. from the date of pregnancy to the end of maternity leave) or those exercising, or seeking to exercise, their right to take maternity leave. This means that employees who feel that they are being treated unfairly because of any fertility issues do not necessarily benefit from the right not to be discriminated against.
- Employees/ workers undergoing IVF treatment will be protected by general sex discrimination law from the time that the ova are collected until the implantation of fertilised ova in the uterus. An employer cannot treat an employee/ worker less favourably because they are undergoing IVF treatment. Nevertheless, this protection is extremely time-specific, and does not afford the employee any specific protection in the time leading up to this juncture. There may be scope to make arguments of indirect sex discrimination if an employee is subjected to a detriment for a reason connected to the IVF treatment, but at present there is no significant case law on the issue.
- There is no statutory entitlement to time off for fertility treatment. Employees/ workers are generally expected to utilise their annual leave entitlement.
- If an employee/ worker is sick as a result of fertility treatment, they will need to follow the usual internal processes relating to sickness absence in order to receive statutory or company sick pay.
- There are no additional health and safety obligations on employers for those undergoing fertility treatment, where that treatment has not yet been successful.
- There is no statutory right for leave, in the event that fertility treatment is unsuccessful.
However, the absence of specific statutory provisions does not mean that employers should ignore the difficult reality facing many workers/ employees embarking on a fertility journey.
Why should employers consider fertility treatment?
It is well documented that fertility treatment has an impact on staff in the workplace. Fertility treatment has a knock-on effect on the emotional, physical and financial wellbeing of employees and all of those factors can influence and potentially reduce output and productivity.
It is in the employer’s best interests to support individuals undergoing fertility treatment and help foster a culture of openness, whereby employees feel comfortable enough to approach their employer (if they so wish) regarding any fertility concerns/the fact that they are receiving fertility treatment, without apprehension or feeling as if they may be discriminated against. Employers benefit from a diverse, committed and happy workforce which can be achieved through supporting individuals through difficult and turbulent times, both professionally and personally. This is not to mention that employers will likely see commitment and enthusiasm greatly increase, if workers/ employees undergoing fertility treatment feel valued, that fertility is recognised by the workplace as an issue which can impact them and which they can raise and discuss,and that their work-related concerns are being addressed.
There are legal risks too, as outlined above, in particular surrounding direct and indirect sex discrimination arguments which may arise whether or not fertility treatment is successful. A failure to adequately support an employee going through such treatment could additionally or alternatively amount to a breach of trust and confidence, entitling the employee to resign and claim constructive dismissal (if they have more than 2 years’ service). We may also see progression around the laws and protection in this area. For instance, the symptoms of menopause can now be argued as meeting the legal test for a disability under the Equality Act 2010. Further, infertility can often arise as a result of treatment for other conditions, including cancer, which is automatically considered to be a disability under the Equality Act 2010.
At the very least, it should be clear to employers that fertility is a rising issue which could very well affect its employees in several ways. Prudent employers should therefore give mind to taking active steps to implement mechanisms and ensure affected employees feel supported.
What specific mechanisms can employers introduce in the workplace?
- Fertility Policy – employers could look to introduce a fertility policy to establish fair practices and procedures for dealing with fertility treatment. This would ensure equality in execution amongst staff members, whilst also ensuring staff understand what they can expect in terms of support throughout their treatment. The policy could look to address time off work for those embarking on treatment or when fertility treatment is unsuccessful. The policy could also flag who to approach for confidential discussions about treatment.
- Flexible Working – employers could facilitate discussions with those embarking on a course of fertility treatment to see if flexible working arrangements could benefit both parties. For example, permitting an employee more flexibility in hours or greater opportunities to work from home may minimise health and safety concerns, or limit travel associated with the workplace, at a time when an employee may feel more vulnerable or fatigued.
- Training – HR managers or leaders within the business should be encouraged to participate in related training to better understand fertility treatment and its impact. This will give staff members greater confidence in approaching their employer to discuss any issues proactively, knowing that it will understand their concerns and be equipped to resolve them. This will likely allow employers to manage and tackle any issues early on, minimising disruption or dissatisfaction in the workplace. General training sessions involving the entire workforce could also be introduced (resource depending) to raise awareness of fertility as a topic of conversation in the workplace across all employees and destigmatise any apprehensions towards it as a topic which is “taboo”
,. This could encourage affected employees to be open with employers regarding their journey, any concerns, and any impact on their working which, in turn, would allow employers to best support their staff.
- Fertility Officer – a designated member of staff could be allocated as a fertility officer to increase workplace discussions about fertility, and to create a safe environment for confidential discussions to be had. Their role could be promoted across the wider workforce to destigmatise the idea that fertility is not something to be discussed within the workplace. Employers would also benefit from early discussions taking place, so it may prepare for any staffing gaps caused by fertility treatment or anticipated parental leave.
- Benefits – in a competitive job market, workers/ employees are actively seeking favourable benefits packages from progressive, forward-thinking employers. Large companies are increasingly offering employees fertility benefits packages to include benefits such as reproductive healthcare assessments, family planning services, employer-funded treatment and wellbeing therapies. To attract the best candidates, and to retain staff long-term, it is worthwhile considering if there are any fertility treatment benefits that can be offered.
For specific advice arising out of fertility treatment in the workplace, or for assistance in preparing bespoke policies tailored to your business needs, contact our employment team.