Fertility Awareness in the Workplace
This week is National Fertility Awareness Week (31 October to 4 November 2022). The main focus of the week is to put a media spotlight on infertility which is an issue faced by 1 in 6 couples in the UK. This equates to approximately 3.5 million people across the UK, many of whom are employees.
Infertility is a recognised disease
Infertility is a medical condition with a wide range of causes. The World Health Organisation recognises it as a “disease of the reproductive system”. There are many different treatments available ranging from medical and surgical procedures to assisted conception.
It is common for fertility problems to affect the physical, emotional and psychological wellbeing of individuals, which can be exacerbated by the financial stress created due to the cost of treatment options.
Fertility in the workplace
Coping with fertility issues at work can be extremely stressful. It is worth remembering that men, just as much as women, can be affected emotionally by this and that employees may be reluctant to speak to their employer about their fertility problems because they fear that their employer will not take their infertility seriously, that their confidentiality may be breached, or that doing so will detrimentally affect their career.
Investigation and treatment can be time consuming, which can result in reduced productivity and increased absences. While some clinics will try to be flexible and arrange appointment times to suit their patients, this will not always be possible meaning that an employee may need to take some time off during their normal working hours to attend an appointment. The amount of time that an employee will need to be away from work will depend on factors such as the nature of the appointment, tests and treatment, the distance between the clinic and workplace and the timing of the appointment. Complications can also arise and individuals can react differently to treatment. Although some employees may be able to take just a few days off, others may need additional time.
How much time off work is an employee entitled to for fertility treatment?
In the UK, employees have a legal right to time off work for antenatal / post-natal care and the right to request flexible working, but there is no statutory right to time off work for fertility treatment.
If an employer refuses time off for fertility treatment, an employee may be able to bring an Employment Tribunal claim for indirect sex discrimination.
ACAS guidance suggests that employers should treat medical appointments related to fertility the same as any other medical appointment under the terms and conditions of the contract of employment and / or relevant workplace policy.
Where possible, it is also advisable that employers allow some degree of flexibility or agility in the working day when an employee needs to attend a fertility clinic. This is likely to have wider benefits for employee relations.
If an employee is off sick due to treatment, how should we treat the absence?
If an employee is off sick due to the side effects of fertility treatment, the employer should treat the absence as no different to any other type of sick leave under the terms and conditions of the contract of employment and / or relevant workplace policy.
Employees should ensure that they follow their employer’s usual sickness absence policy to report their absence. If such time off is likely to be unpaid, they could consider taking annual leave for some of the appointments or absence.
Employee rights – IVF
There are many different types of assisted conception, one of the best known being in vitro fertilisation (IVF).
It should be remembered that:
- A woman undergoing IVF treatment will be protected by sex discrimination law from the time of follicular puncture (when the ova are collected) until the implantation of fertilised ova in the uterus immediately after fertilisation. An employer that treats an employee less favourably during this time because she is undergoing IVF treatment will have discriminated against her because of sex.
- Once the fertilised ova are implanted in the uterus, the employee is pregnant. This starts a “protected period”, whereby the employee is protected from pregnancy and maternity discrimination until the end of maternity leave (or return to work or termination of employment). She is legally entitled to time off work to attend antennal/ post-natal appointments.
- If the implantation subsequently fails, and the pregnancy ends, the protected period ends after a further two weeks have elapsed. If an employer treats an employee unfavourably during this period because of the pregnancy, the employee will have suffered pregnancy and maternity discrimination.
- It is important to remember that it can still be unlawful to treat an employee unfairly because of pregnancy, maternity or breastfeeding outside of the protected period if that unfair treatment stems from a decision made during the protected period or relates to a separate claim under sex discrimination.
Implementing a policy on fertility treatment
Unfortunately, not all employers recognise fertility treatment as necessary medical treatment and only some have implemented formal policies to support staff having treatment. It is, therefore, crucial that awareness and understanding of this subject is increased so that employees feel able to discuss their fertility troubles with their employer and employers are able to provide the necessary support for staff affected by this issue.
Fertility Network UK has reported that employers who have implemented a fertility policy feel that employees have responded positively and responsibly. Employers have also advised that the policy generates goodwill with employees which helps to foster a happy workforce and improves productivity.
A fertility policy should:
- Recognise the stress associated with undergoing fertility treatment and set out the employer’s commitment to a sensitive and supportive approach.
- Explain the confidential nature of the policy, which should encourage employees to disclose the reason for their absence.
- Set out what time off employees will be permitted to take in connection with fertility treatment, including how much time off will be provided for each stage of treatment – e.g. during initial investigation, during treatment and after treatment. Options include offering unlimited leave or giving a set number of paid days off with the option of additional unpaid leave or flexible working.
- Set out whether some or all of the time off will be paid and, if so, the applicable rate of pay.
- Set out the procedure for employees asking for time off, including who the employee should ask, how much notice is required and what documentation will be required as supporting evidence (e.g. appointment cards).
- Make reference to the company’s flexible working policy as employees going through fertility treatment may wish to request temporary flexible working in addition to permitted time off (e.g. a temporary change to their working pattern to cover an IVF cycle); and
- Make reference to any applicable Mental Health Policy or Employee Assistance Programme, as employees going through fertility treatment may also struggle with ill mental health or work-related stress.
If you are considering implementing a fertility policy, or if you would like to discuss any aspect of this blog, please contact Lesley Grant, Associate, or any other member of the BTO employment team.
The following blog may also be of interest: Surrogacy – What Employers and Employees Need to Know
This update contains general information only and does not constitute legal or other professional advice.
Lesley Grant, Associate: ljg@bto.co.uk / 0141 221 8012 / Connect with Lesley on LinkedIn
