Case of the week IVF treatment rules clarified

Sahota v The Home Office and Pipkin

FACTS

Immigration officer Parminder Sahota was experiencing difficulties becoming pregnant and had begun a course of IVF treatment which had been unsuccessful on two occasions. Sahota issued a complaint of sex discrimination in the employment tribunal claiming that she had been subjected to various detriments because she was undergoing IVF treatment.

DECISION

The employment tribunal found that the acts Sahota complained of either did not amount to a detriment or harassment or, even if they arose out of it or of circumstances connected with it, were not done on the grounds that Sahota was undergoing IVF treatment.

The Employment Appeal Tribunal (EAT) upheld the findings of the employment tribunal. It also went on to discuss the extent to which discrimination on the ground that an employee is receiving IVF treatment is to be regarded as discrimination on the grounds of sex or pregnancy.

The EAT said that it is long recognised that discrimination against a woman on the ground of her pregnancy is direct sex discrimination and there is no need to identify a male comparator. However, the case-law is also clear that when a worker is absent as a result of a gender-specific illness, even one attributable to pregnancy or confinement, less favourable treatment on account of that absence does not constitute sex discrimination if a male worker would have been treated in the same way.

However, the EAT went on to say that a question does arise as to whether the protection afforded to pregnant employees extends to those undergoing IVF treatment who are not pregnant, either because treatment has begun but the ovum has not yet been implanted, or because an implantation has failed. Sahota argued that it was wrong to treat the position of a female employee undergoing such treatment as comparable with that of a man undergoing medical treatment, and that to subject a female employee to a detriment on the grounds that she is undergoing such treatment constitutes direct sex discrimination.

The EAT considered the findings of the European Court of Justice (ECJ) in Mayr v Backerei und Konditorei Gerhard Flocker OHG. In Mayr the ECJ held that an employee undergoing IVF treatment would not be protected under the Pregnant Workers’ Directive until implantation of an ovum had occurred. However, at an advanced stage of IVF treatment (that is between the retrieval of the ova and the immediate transfer of the fertilised ova into the uterus) an employee would be protected under the Equal Treatment Directive. In these circumstances it would be direct sex discrimination to subject a female employee to a detriment because she was undergoing that particular stage of IVF treatment.

The EAT said that the narrow formulation of the ECJ’s judgment was deliberate and ensured legal certainty. It therefore rejected Sahota’s argument that protection of female employees should be widened to the entire duration of IVF treatment.

IMPLICATIONS

In the UK, pregnant workers are protected under the Sex Discrimination Act 1975 (SDA) and the Employment Rights Act 1996 (ERA). The SDA explicitly prohibits discrimination on the grounds of pregnancy. The ERA protection includes making it automatically unfair to dismiss a woman when the reason (or principal reason) for the dismissal is connected to her pregnancy.

In light of the EAT’s decision, a woman undergoing IVF treatment will only receive protection relating to pregnancy if she is indeed pregnant. However, it will still constitute sex discrimination to treat a woman at an advanced stage of IVF treatment less favourably simply because she is receiving that treatment.

Mary Clarke, employment partner, DLA Piper

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