To a non-lawyer, the idea of the European Court of Justice having to decide the point at which a pregnancy technically ‘begins’ may seem far-fetched – bizarre, even – particularly when the case in question is actually one about employment rights.
But the decision in the case of Sabine Mayr, an Austrian waitress who was sacked while undergoing IVF (in vitro fertilisation) treatment, is an important one for the many thousands of women across the European Union who need fertility treatment to help them conceive. In the UK, it is estimated that one in seven couples have difficulty conceiving. That figure is rising as more couples choose to postpone starting their families until their late thirties and beyond.
Employers can struggle to deal fairly and sensitively with employees undergoing fertility treatment. Unsurprisingly, many women struggle to communicate openly about the issue at work. The subject is very highly charged emotionally and some of the treatments involved high doses of hormones that can make the emotions involved even more prone to fluctuation and intensity.
In that context some clear legal guidelines about the rights that a woman has in such cases are welcome – there is no other authoritative case law on the subject although advisers would have been likely to say that sex discrimination law might apply.
The European Court came to the view that a woman cannot be pregnant until an egg that has been fertilised with her partner’s sperm has been implanted in the uterus. The fact that fertilised eggs can be stored for up to 10 years was an important factor in this part of the decision.
Had the judges come to the opposite conclusion, women with fertilised eggs in storage would have been able to claim the special protection available to pregnant workers over long periods of time with no prospect of the ‘pregnancy’ ever resulting in a birth.
Instead, the Court concluded that women are protected by European law on equal treatment of men and women – which is implemented in the UK through the Sex Discrimination Act.
This means a woman undergoing invasive fertility treatment is undergoing a process which cannot be experienced by a man and therefore to subject her to a detriment or dismiss her as a result would be direct sex discrimination.
What should employers make of this? The principal problem that fertility treatment presents for an employer is that the employee will need time off work. The judgment makes it clear that absences for fertility treatment should be treated in the same way as absences related to pregnancy and they should not result in discipline, dismissal, selection for redundancy, demotion or any other detrimental treatment.
Employers will say that they can only deal with the issue properly if they know what is going on and that the reluctance of some employees to talk to their managers about the reasons for their absences prevents this. The response of tribunals and courts to that plea is likely to be that the onus is on the employer to create an environment in which employees can be confident that if they raise emotionally charged and confidential issues they will receive a respectful and sensitive response. As with most workplace problems this means having sensible managers, good training and clear and well communicated policies.
The judgment focuses on the technical commencement of pregnancy, and the degree of invasiveness involved in some forms of fertility treatment. No employer should conclude that the case is therefore giving it permission to ask searching and intrusive questions about the treatment that is being undergone. That would be the wrong approach entirely and almost certain to undermine the trust and confidence that both sides will need to establish in order to maintain the employment relationship through what can undoubtedly be a difficult time.
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Key points:
- The European Court of Justice has found that women undergoing fertility treatment are protected by European law.
- The protection does not arise from the law on pregnant workers unless and until a woman has had a fertilised egg implanted in her uterus.
- Before that, fertility treatment processes that can only be experienced by women will mean that the woman can claim protection under sex discrimination law.
- Employers now have some clear legal guidelines on the management of women undergoing fertility treatment.
- The guidelines establish that absences for fertility treatment must be treated in the same way as pregnancy related absences and must not result in discipline or other detrimental treatment.
- Employers should not use the fact that the judgment contains technical points about the processes involved as a reason for questioning employees intrusively about their treatment.
Christina Morton is a professional support lawyer at Beachcroft
