05 November 2020

Fertility Network UK’s National Fertility Week ends today, Thursday 5 November 2020, with a particular focus on #FertilityintheWorkplace.

Research by Fertility Network UK found that approximately 1 in 6 couples in the UK face fertility issues, and that most employees are reluctant to speak to their employer about fertility issues because they fear doing so will detrimentally affect their careers. It is also common for people going through fertility treatment to be impacted both physically and mentally.

It is therefore crucial that both employers and employees are educated on fertility in the workplace. Employees should be aware of their employment rights and employers should implement policies and procedures to create a supportive environment for employees going through fertility treatment.

This blog summarises some of the key employment rights and guidance relating to fertility in the workplace, before setting out why (and how) employers should consider implementing a workplace policy on fertility treatment.

Employment rights - In Vitro Fertilisation (IVF)

• IVF is a fertilisation process which takes place outside of a woman’s body to help her become pregnant. It involves female patients attending a fertility clinic regularly over a number of weeks
  
  
• There is no statutory right for employees to take time off work for IVF investigation or treatment. However, 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.
  
  
• 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 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.

Employment rights – 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. In June 2019 the Law Commissions of Scotland and England and Wales consulted on potential reform in this area and a Report setting out proposals for reform will be put before the UK Government in due course. 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.

Implementing a policy on fertility treatment

Having a written policy on fertility treatment and issues which can arise gives an employer the opportunity to demonstrate its understanding of fertility in the workplace, while maintaining employee expectations on the support that is available. It would also remove uncertainty staff may have about how the employer will address such issues in work and what employees should do to access support.

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 treatment 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 infertility treatment, including how much time off will be provided for each stage of treatment – e.g. during initial investigations, 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 additional 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 treatment policy, or you would like to discuss any aspect of this blog, please contact Caroline Carr, Partner and Accredited Employment Law Specialist, or any other member of the BTO Employment Team.

Blog by Caroline Carr, Partner E. cac@bto.co.uk and Katie Hendry, Trainee Solicitor E. khe@bto.co.uk.

This update contains general information only and does not constitute legal or other professional advice.

Employment law:

Caroline Carr, Partner: E: cac@bto.co.uk / T: 0141 225 5263
Laura Salmond, Partner: E: lis@bto.co.uk / T: 0141 225 5313
Douglas Strang, Senior Associate: E: dst@bto.co.uk / T: 0141 225 5271