28 October 2019

Today marks the start of the Fertility Network UK’s National Fertility Awareness Week, running from 28 October to 3 November 2019. The Fertility Network notes that 1 in 6 couples in the UK now face fertility issues. The focus of the week is to therefore spread awareness of the issue UK wide.

Fertility issues can affect both physical and mental health and it is inevitable that this will sometimes have an impact at work and will therefore affect employees and employers. Research by the Fertility Network has shown that most people suffering from infertility are often reluctant to speak to their employer about it, because they fear doing so will detrimentally affect their career.

This blog summarises some of the key employment rights and current ACAS guidance relating to fertility and workplace issues.

In Vitro Fertilisation (IVF)

• IVF is a fertilisation process which takes place outside of a woman’s body to help her become pregnant.
   
• There is no statutory right for employees to take time off work for IVF investigation or treatment. ACAS guidance suggests that employers should treat medical appointments related to IVF the same as any other medical appointment under the terms and conditions of the contract of employment. The Fertility Network recommends that employers could even implement a specific fertility policy to cover such issues.
   
• Maternity rights and protection from discrimination under the Equality Act 2010 apply from the date of embryo transfer.
   
• Where fertility treatment is successful, maternity rights and protection continue from the date of embryo transfer to the end of maternity leave (or a return to work or termination of employment). This is called the “protected period”.
   
• However, it can still be unlawful to treat an employee unfairly because of pregnancy, maternity or breastfeeding if that unfair treatment stems from a decision during the protected period or relates to a separate claim under sex discrimination.

Surrogacy

• Surrogacy is a process whereby a woman carries and gives birth to a baby for intended parents.
   
• Under the current law, the woman who gives birth to the child will be treated as the legal mother at birth until parenthood is transferred by either a parental or adoption order. The Law Commissions of Scotland and England and Wales are currently consulting on potential reform in this area and further information on that can be found on BTO’s family law page.
   
• The woman who carries the child (the surrogate) is entitled to 52 weeks’ maternity leave and to return to her job afterwards. The fact that her pregnancy is part of a surrogacy arrangement does not affect any of her maternity rights during that period.
   
• Where intended parents plan to apply for a parental or adoption order after the birth, adoption leave and pay may be available provided the statutory qualifying conditions are met. The same applies to paternity, parental and shared parental leave and pay.

Employers should use this week as a platform to encourage employees experiencing fertility problems to speak to them. Such employees should also familiarise themselves with the legal protections and guidance which currently exists.

Please contact Caroline Carr, Partner and Employment Law Specialist Accredited by the Law Society of Scotland or any other member of the BTO employment team if you would like to discuss any aspect of this blog.

Contact: Caroline Carr Partner cac@bto.co.uk T: 0141 221 8012