Due to an increasing tendency for women to delay starting a family, more employers are having to face the question of their employees’ entitlement to time off and pay during an IVF (in-vitro fertilisation) cycle.
The UK tribunal decisions on IVF to date have been inconsistent. The recent decision of the European Court in Mayr v Backerei und Konditorei Gerhard Flockner OHG [2008] IRLR 387, EAT which clarifies some, but not all, of the issues involved.
A waitress undergoing IVF was dismissed three days before her fertilised eggs were implanted. She claimed protection under the Pregnant Workers’ Directive on the grounds that her eggs were fertilised when she was dismissed and therefore she was pregnant.
It has been ruled that the aim of the Directive was to protect the health and safety of pregnant women and women who had recently given birth and did not apply to women whose eggs had been fertilised, but not yet implanted. However, the claimant would be protected by the Equal Treatment Directive if the reason she was dismissed was the fact that she was undergoing IVF treatment, as this treatment affects only women.
Implications for employers:
As a matter of best practice employers should treat a female employee undergoing IVF with support, accommodating reasonable requests for time off as far as is possible.
Employers now know that female employees undergoing IVF treatment do not fall within the legislation protecting pregnant women contained in the Sex Discrimination Act 1975 and the Employment Rights Act 1996 prohibiting discrimination on the grounds of pregnancy.
It is not therefore automatically unfair to dismiss a female employee when the reason for the dismissal is connected to her IVF treatment, as this is not pregnancy. However such a dismissal is likely to be normally unfair in any event.
Employers must not treat a female employee undergoing IVF less favourably than other employees as this will be direct sex discrimination.
So when does the pregnancy of an employee going through IVF begin? To what extent the employee protected from detrimental treatment or dismissal during an IVF cycle? How should she be paid?
Pregnant
For the purposes of the pregnancy directive, a woman is pregnant from the time of implantation.
Dismissal
If a woman is at the stage in the cycle when she is being prepared to receive a fertilised egg, and implantation is imminent but is not pregnant, she is protected under the equal treatment directive. This is because only women can undergo IVF treatment, so to treat a woman detrimentally or dismiss her for that reason is direct discrimination even though the directive does not specifically refer to IVF.
Detrimental treatment
The directives do refer to “provisions concerning the protection of women, particularly as regards pregnancy and maternity”. Protection against detrimental treatment or dismissal applies when women are in an advanced stage of the IVF process but it is not identified when this advanced stage begins. It is therefore considered that the protection applies to all the steps in the cycle.
Sick pay
If a woman is off sick when she is pregnant, but not yet on maternity leave, she is entitled to the same sickness benefits as other employees. Even when sick pay runs out she is entitled to some pay, which must not be so low that it undermines the objective of protecting female workers, in particular before giving birth. The same should apply to women going through the IVF cycle, but as there is no decision or guidance on this point yet, we recommend to treat all IVF absence in the same way as pregnancy absence in dismissal and redundancy cases unless and until it is decided that the protection is limited to the advanced stages.
If you require any further information about Sex Discrimination or the Pregnant Workers Directive, please contact Verity Slater of Follett Stock either by email at verity.slater@follettstock.co.uk, or by telephone on 01872 247284.
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