Legal dilemma: women undergoing IVF treatment

I work as an HR manager at a large media company. In recent months, there’s been a surge in the number of women taking time off because they are having IVF treatment. Our view is that these employees should take this time off as leave. What is our legal position if we seek to enforce such a rule?

You are not legally obliged to allow employees time off from work to undergo IVF treatment, so you can insist they take the time off as annual leave.

However, if an employee is ill as a result of the treatment – for example, if they suffer from stress or some other complication – then they will be entitled to take sick leave. Statutory sick pay and contractual sick pay, if appropriate, will be payable as normal.

Employees who are undergoing IVF treatment are protected under the Sex Discrimination Act 1975, and you must ensure they are not treated differently to other employees. If you were to dismiss an employee or otherwise treat her differently because she is undergoing, or has undergone, IVF, this will constitute unlawful sex discrimination.

You should ensure that all staff undergoing IVF are treated fairly and consistently. To that end, you may wish to consider putting in place a policy confirming that employees will be required to take time off from work for IVF treatment as annual leave. If you do so, you should set out clear guidelines in the policy, again to ensure consistency of treatment.

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You should be careful to ensure that the confidentiality of employees undergoing IVF is respected.

Finally, a tribunal claim brought in March 2009 against the UK Border Agency demonstrates why employers need to be cautious when dealing with employees undergoing IVF treatment. An immigration officer was allegedly teased by her boss that ‘all she wanted to do was get pregnant’. She was then suspended from work while her absences from work due to IVF treatment were investigated. Her claim for unlawful sex discrimination is ongoing, and she remains absent due to work-related stress.