Can Staff Take Time Off Work for IVF?

In this guide for employers, we consider the current position in employment law relating to fertility treatment, including whether workers are allowed time off work for IVF and how and why employers should look to create a supportive environment for workers undergoing IVF.

 

Implications of IVF treatment

 

IVF is a type of fertility treatment where fertilisation takes place outside the body. It is suitable for people with a wide range of fertility issues and is one of the most commonly used and successful treatments available.

A woman who is treated less favourably because she is undergoing IVF treatment might successfully bring a claim for sex discrimination. However, the law does not currently provide specific protection to those accessing treatment at the earlier stages, as early IVF appointments are not recognised as antenatal appointments or sickness absence.

As well as the potential addition of a family member, IVF treatment can result in both mental and physical exhaustion. Common side effects of undergoing IVF treatment include:

 

• an increased chance of ectopic pregnancy;
• ovarian hyperstimulation syndrome;
• complications of multiple births;
• hot flushes;
• low mood; and
• headaches.

 

The treatment leading up to a potential pregnancy is complex and often inflexible, it might include but is not limited to:

 

• Weekly hospital appointments
• Daily injections
• Ultrasound scans
• Taking daily medication
• Egg collection procedure
• Sperm sample collection
• Embryo transfer procedures
• Menstrual cycle tracking

 

Going through the process of trying for a baby is a private and personal one, therefore many find it difficult to discuss their fertility in the workplace. But for employers, the aim should be to create an environment where employees feel they can discuss their fertility in the workplace, in confidence.

It’s an important area for businesses to consider for a number of reasons:

 

• for employers to have an appreciation of an employee’s fertility journey
• the links between fertility and mental health
• the need for time off for fertility treatment
• impacts on an employee’s work
• to understand what employers can do to provide support

 

These are vital areas that any business should be considering, to help employees continue to thrive at work.

 

Current law on IVF & fertility rights

 

Under current UK law, women do not have specific employment protections relating to pregnancy until the final stage of the in vitro fertilisation (IVF) process.

The emotional and physical impact of fertility treatment are two big challenges for those who are going through the process, however under employment law in the UK there’s currently no legal right to time off work for IVF treatment or related sickness. Only once the final part of the IVF treatment is completed, known as ‘embryo transfer,’ do pregnancy rights come into effect.

 

Is an employee entitled to time off to have IVF treatment?

 

At present, the law does not give employees the right to take time off work to undergo IVF investigations or treatment. Any time off for IVF treatment should be treated the same way as other medical appointments.

However, many employers recognise the unique circumstances of undergoing IVF treatment and are encouraged, where possible, to show flexibility and leniency. Many operate specific IVF policy which will clearly set out your rights and obligations.

As there is no express statutory entitlement to time off for IVF investigations or treatment it follows that there is no automatic right to be paid during any time off for treatment. However, the ACAS guidance on this point states as follows:

“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. Employers may agree to flexible working arrangements or a combination of paid, unpaid, or annual leave during the treatment.”

The problem for employers with this approach, is that it could give rise to indirect sex discrimination claims as it could be argued such a policy may disproportionately affect women.

The Equality And Human Rights Commission Code recommends that employers treat requests for time off for IVF treatment sympathetically and that employers may wish to establish procedures for allowing time off for IVF and fertility treatment. These procedures may enable women to tell named members of staff on a confidential basis that they are having treatment.

 

What are the rights of women undergoing IVF and when is she treated as being pregnant?

 

A woman undergoing IVF is treated as being pregnant after fertilised eggs have been implanted. If the implantation fails, the protected period, during which a woman must not be treated unfavourably, ends two weeks later.

 

What if a woman is ill following IVF treatment?

 

Pregnancy-related illness (which may include illness in connection with the IVF treatment) during the protected period should be recorded separately from other sickness and ignored when making decisions based on sickness absence levels (for example about discipline, redundancy, promotion, pay rises etc.)

Women are protected from pregnancy related unfair treatment and discrimination throughout the “protected period”. Somewhat surprisingly, this period will only begin at the implantation stage and not before. This means that an employer is therefore unlikely to be guilty of pregnancy discrimination in relation to any unfair treatment prior to the implantation stage.

However, even if you are not within the “protected period”, if you suffer discrimination/ill treatment as a woman because of your IVF, outside of the “protected period”, then it may still qualify as an act of sex discrimination.

Following implantation a pregnancy may or may not occur, but the women is regarded as being pregnant from this point onwards. On a practical level, it is prudent to advise your employer of the implantation at the earliest so that there can be no doubt that you are protected from any adverse treatment arising from this.

If the IVF treatment is successful and the woman remains pregnant she will be protected against discrimination on the grounds of pregnancy until the end of her maternity leave.

However, if the treatment is unsuccessful, the protection will end two weeks after the end of the pregnancy. A pregnancy test is taken two weeks after implantation and, if the test is negative, the protected period extends for a further two weeks.

 

How to support employees through fertility treatment

 

It can be difficult to understand how an employer can offer help to employees when they might not actually know who in their workforce is struggling with this issue. Yet, there are steps which can be taken to ensure everyone is aware of how the company plans to support someone should the situation arise.

Here are five possible options for creating an environment where employees feel comfortable discussing the impact of their fertility in the workplace with their line manager and HR.

 

Fertility policy

Employers should consider having a people policy in place which outlines the organisation’s stance on fertility treatment. This policy can clearly explain to employees how and when the organisation will support them if they undergo a fertility journey. This policy could outline what support is offered by the employer for all distinct aspects of fertility treatment. IVF isn’t the only option an employee has to become a parent.

Most organisations have policies in place for life events such as maternity and paternity along with sick and compassionate leave. Having a fertility policy would complement other life event policies that HR (Human Resources) will already have in place.

Policies also demonstrate to employees that an employer is forward-thinking and has considered all aspects of life that could impact their workforce. Having a fertility policy demonstrates that the employer cares.

 

Flexible working

Central to any fertility policy is paid flexible working days. This is because of the unpredictable nature of IVF treatment times such as tests, egg collections and embryo transfers, which can be moved by several days according to hormone levels.

The privacy and ability to work flexibly from home allows those on a fertility journey to attend their appointments and complete home treatments with discretion and ease without unwanted questions. Having a working culture which embraces flexible working means colleagues can be reassured that if they needed time away from work for treatment or time off work for IVF, they could do so with little workplace disruption.

 

Awareness activities

Employees and prospective employees consider the social consciousness of an organisation just as much as benefits and role profiles. Being proactive about topics of concern demonstrates that wellbeing concerns are recognised.

Holding awareness days or weeks where employees can learn about a given topic helps to normalise topics. Making topics more common place or visible can make them no longer a ‘difference’ and this can in turn make employees feel included.

National Infertility Awareness Week usually takes place in the last week of April each year.

 

Employee benefits

Employee benefits are a fantastic way of supporting employees. Review what benefits are offered to employees and identify medical support and wellbeing services which can help those considering starting a family. Some organisations are offering financial benefits for those undergoing a fertility journey6. This is a fantastic way for organisations to support employees but also show they are a socially conscious employer. Typically, conversations around fertility focus on white heterosexual couples however fertility transcends, race, ethnicity, sexual orientation, and relationship status.

 

Environmental changes

Making small adjustments to the physical work environment can also hugely ease the strain that IVF can place on employees. Feeney explains that for women who have to inject themselves with hormones or insert pessaries – sometimes up to three or four times daily – a private clean space should be available, while somewhere to lie down afterwards for 30 minutes is ideal in the case of pessaries.

 

Employee Assistance Program (EAP)

An Employee Assistance Program (EAP) is a fantastic way of supporting employees anonymously. EAP is normally a phone-based service offered to employees to help deal with personal problems that might impact their:

 

• performance at work
• health
• wellbeing

 

EAP service providers are completely anonymous. Reminding employees that this service is available can help solve the problem of reluctance to discuss their fertility journey with their managers.

 

Best practice advice for employers

 

Employers who wish to provide a supportive workplace for those undergoing IVF treatment (and perhaps minimise the risk of sex discrimination claims related to IVF) could consider:

 

• Helping to establish a supportive environment (for example, by introducing educational workshops that discuss IVF treatment and fertility issues);
• Training managers and HR on how to support staff who disclose that they are undergoing IVF treatment;
• Extending the right to time off work or flexible work options to include the early stages of IVF treatment; and
• Establishing a fertility benefits policy in the workplace that, for example, covers egg freezing costs.

 

Need Assistance?

 

DavidsonMorris’ employment law & HR specialists support employers with guidance on workforce rights and entitlements relating to pregnancy, maternity and fertility treatment, including developing organisational policies and fostering a supportive working environment for employees undergoing IVF. For expert advice, contact us.

 

Time Off Work For IVF FAQs

 

What rights do employees have to time off for IVF in the UK?

Employees do not have a statutory right to time off specifically for IVF treatment. However, once IVF has reached the stage of embryo transfer, employees are protected under the Equality Act 2010, which covers pregnancy-related conditions.

 

Does IVF treatment count as sickness absence?

In some cases, time off for IVF treatment may be treated as sickness absence, especially if the employee experiences side effects from the treatment. Employers should handle this with sensitivity and in line with their sickness absence policies.

 

Is an employee obliged to inform their employer about undergoing IVF?

No, an employee is not legally obliged to disclose their IVF treatment to their employer. However, it may be beneficial for both parties if the employer is informed, as it allows for appropriate support and flexibility.

 

How should employers handle IVF-related absences?

Employers should treat IVF-related absences with the same consideration as any other medical treatment. This includes offering flexibility where possible, maintaining confidentiality, and being aware of the legal protections under the Equality Act 2010.

 

Can an employer refuse time off for IVF treatment?

Employers should not unreasonably refuse time off for IVF treatment, especially considering the legal protections once the treatment reaches the stage where the employee is considered pregnant. Employers are encouraged to offer flexible working arrangements or allow annual leave or unpaid leave to accommodate the employee’s needs.

 

What steps can employers take to support employees undergoing IVF?

Employers can create a supportive environment by developing clear policies on IVF treatment, offering flexible working hours, and providing a confidential space for discussions. Training HR staff and managers to handle IVF-related requests with empathy and understanding is also crucial.

 

Is IVF covered under maternity leave?

IVF treatment itself is not covered under maternity leave. However, once the employee becomes pregnant through IVF, they are entitled to the same maternity rights as any other pregnant employee.

 

What should an IVF leave policy include?

An IVF leave policy should clearly outline the company’s approach to handling time off requests for IVF treatment, including how such leave will be recorded, the support available to employees, and how confidentiality will be maintained. It should also address the legal rights and obligations of both the employer and the employee.

 

Glossary

 

 

Term	Definition
IVF (In Vitro Fertilisation)	A medical procedure whereby an egg is fertilised by sperm outside the body, with the resulting embryo being implanted into the uterus.
Embryo Transfer	The stage in IVF where the fertilised egg (embryo) is placed into the uterus, a key point at which legal protections under the Equality Act begin.
Equality Act 2010	A UK law that protects individuals from discrimination, including those undergoing IVF treatment when it reaches the stage of embryo transfer.
Sickness Absence	Time off work granted to an employee due to illness or medical treatment, which may include time off for IVF if the employee experiences side effects.
Pregnancy-Related Conditions	Medical conditions or illnesses related to pregnancy, protected under the Equality Act 2010, which may apply to employees undergoing IVF.
Flexible Working	Working arrangements that allow for variability in work hours or location, which can be offered to support employees undergoing IVF.
Confidentiality	The obligation of employers to keep an employee’s personal and medical information private, particularly concerning sensitive issues like IVF.
Maternity Rights	Legal rights granted to pregnant employees in the UK, including maternity leave and protection against unfair treatment.
Annual Leave	Paid time off work granted to employees, which can be used for personal reasons, including attending IVF treatment appointments.
Unpaid Leave	Time off work granted without pay, which can be requested by employees for reasons such as attending IVF treatments if no paid leave is available.
HR (Human Resources)	The department within an organisation responsible for managing employee relations, including handling requests for IVF-related leave.