Women having IVF can claim sex discrimination if treated less favourably

Women having IVF treatment to help them conceive can claim sex discrimination if they are treated less favourably because of it, the European Court of Justice (ECJ) has ruled.

The court said that once a female employee’s egg has been collected, she is taking part in procedures that only affect women.

Legal experts warned that the ruling could see women sue employers who disciplined them for taking time off to undergo fertility treatment.

Martin Warren, head of employment law at Eversheds law firm, said: “Businesses need to continually be mindful of falling foul of sex discrimination rules.

“The central concern of most employers in relation to this issue is how they might manage an employee’s pattern of absence during IVF treatment.”

Rachel Dineley, employment partner and head of the national diversity and discrimination unit at Beachcroft LLP, added: “With one in seven women experiencing difficulties in conceiving, many more women are undergoing IVF treatment.

“As a result, employers need to ensure they have the right policies in place to deal with it appropriately, both to safeguard the wellbeing of their female staff, and also to ensure they are adequately protected from a legal perspective.”

The ECJ ruled on the Austrian case of Mayr v Bäckerei und Konditorei Gerhard Flöckner. The case centred on whether a woman in the later stages of IVF treatment should be classed as a pregnant worker, and therefore enjoy the extra protection against dismissal offered by the Pregnant Workers Directive.

The ECJ ruled against Mayr on this point, but – critically – said unlawful direct sex discrimination would occur under the Equal Treatment Directive if a woman were to be dismissed because of the fact that she was undergoing the final stages of IVF treatment.

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