- IVF should not be treated as equivalent to pregnancy and does not attract protection under the SDA except in the limited circumstances identified.
- Action taken in respect of absence due to a gender-specific condition (other than pregnancy) is not automatically discrimination on the grounds of sex.
What you should do
- Consider absence due to IVF treatment with great care and ensure that staff managing such absence are aware of the legal position following this decision.
- Review sickness and absence policies and consider including provisions on IVF treatment.
- If time off for IVF is to be dealt with on a discretionary basis, take steps to ensure consistency and fairness of treatment. Provide training if appropriate.
The EAT rejected a claim that action taken against a female employee in respect of her absence due to IVF treatment amounted to unlawful sex discrimination. It ruled that IVF should not be treated as equivalent to pregnancy except in limited circumstances.
Parminder Sahota claimed she had been subjected to various detriments because she was undergoing IVF treatment, including being suspended for taking too much time off work due to the treatment. Her claim concerned two unsuccessful implantations in 2007 and 2008. It was agreed that immediately following each of the implantations Sahota had been pregnant.
No protection unless pregnant
The question arose as to whether protection against discrimination extended to employees undergoing IVF treatment who are not pregnant, either because treatment has begun and ova have been fertilised but not yet implanted, or because one implantation has failed but further attempts are contemplated. Discrimination on the grounds of pregnancy is automatic discrimination on the grounds of sex because pregnancy is a condition that only applies to women. Section 3A(3) of the Sex Discrimination Act 1975 (SDA) says a ‘protected period’ starts when a woman becomes pregnant and ends at the end of her maternity leave.
The EAT rejected the argument that IVF treatment should be treated as equivalent to pregnancy. It referred to established case law that less favourable treatment as a result of absence due to a gender-specific illness, even one attributable to pregnancy, does not constitute sex discrimination.
The EAT ruled that infertility is a medical condition and IVF is a form of treatment. Any resulting absence should, therefore, be treated as sickness absence. But there are circumstances in which women undergoing IVF treatment are protected under the SDA, starting with the follicular puncture of the ova and the immediate transfer of the in vitro fertilised ova, and ending two weeks after the end of the pregnancy (if implantation is unsuccessful) or at the end of maternity leave.