Sensitive pregnancy issues

Q Do employees have a statutory right to time off for fertility treatment?

A No. Employees do not have a statutory right to take time off for fertility treatment such as in vitro fertilisation (IVF).

It is, however, possible that if a woman is treated less favourably or dismissed for a reason relating to fertility treatment, she may seek to bring a complaint of sex discrimination. Such treatment will not, however, necessarily amount to unlawful discrimination. Both men and women can undergo fertility treatment, so less favourable treatment will not necessarily amount to direct discrimination.

If, however, an employer dismisses an employee based on assumptions about her future attendance record, for example the assumption that she will be taking more time off if she gets pregnant, this may amount to direct discrimination.

As women usually require more treatment than men for infertility, there is a risk of an indirect sex discrimination claim if an employer cannot justify its attendance rules.

There are very few cases on this issue, presumably because it is a very private matter and employees will not necessarily want to litigate about it. At least one employment tribunal has held that the dismissal of a woman because she was absent for IVF treatment was pregnancy-related and therefore unlawful sex discrimination (Kaveri v Bermingham Power Limited ET/08037/95). However, in Greenwich LBC v Robinson EAT/754/94, the Employment Appeal Tribunal concluded that time off for IVF treatment, though ostensibly related to pregnancy, was actually about not being pregnant and so could, unlike maternity leave, be taken into account for the purposes of an employee’s attendance record when carrying out a redundancy selection exercise.

Q Will an employee who takes time off for fertility treatment be entitled to statutory or contractual sick pay?

A Fertility treatment is not a ‘deemed incapacity’ for statutory sick pay (SSP) purposes. However, the treatment can affect people in different ways. An employee may well be ill due to the treatment, for example through depression or stress. If this is the case, it is up to the employer whether or not to accept the incapacity as stated on any medical certificate or form, to consider SSP entitlement.

Employers must state in the written particulars of employment (Employment Rights Act 1996, section 1) whether they offer sick pay and, if so, on what terms. It is advisable to include the terms in a separate sickness policy, which should cover the majority of eventualities, including fertility treatment. This will then form part of the contractual arrangement determining whether and, if so, how much contractual sick pay is payable to an employee.

Q Where an employee wishes to start her maternity leave on her due date, can the employer insist that she start it earlier so that she has some time to relax beforehand?

A Employees have the right to choose when to start their maternity leave, the one proviso being that it cannot begin before the 11th week before the week that the baby is due (unless the baby is born prematurely). A pregnant employee is therefore entitled to choose to continue working right through to the date that her baby is born, provided that she remains in good health and is capable of working.

There is, however, a special provision that states that if the employee is absent from work on account of a pregnancy-related condition at any time during the four weeks immediately before the week her baby is due, the employer may legitimately trigger the start of the employee’s maternity leave.

A desire to allow the employee time to relax before the birth would not, however, entitle the employer to insist on, or even request, that the employee begin her maternity leave any earlier than the date she had notified as the start of her maternity leave.

Q Where a pregnant employee’s job involves heavy lifting and there is no lighter work available for her to do, can the employer insist that she start her maternity leave early?

A No. An employer cannot force a pregnant employee to start her maternity leave early. The employee is entitled to choose her maternity leave start date. If the employee’s job involves heavy lifting and there is no suitable alternative work available for her to do, where it is necessary for her health and safety as identified in a risk assessment the employer will have to suspend the employee from work on maternity grounds for as long as necessary to protect her safety or that of her unborn child.

Prior to suspension, the employee has a right to be offered any suitable alternative work available. This means work that is of a kind both suitable in relation to her and appropriate for her to do in the circumstances, and to which terms and conditions of employment not substantially less favourable than her own apply. If the employee is suspended on maternity grounds because there is no suitable alternative work available, she is entitled to remuneration at the rate of a week’s pay for each week of suspension.

Q Is an employee who suffers a miscarriage eligible to receive statutory maternity pay?

A To be eligible to receive statutory maternity pay (SMP) a woman must have been continuously employed for 26 weeks prior to the qualifying week, which is the 15th week before the expected week of childbirth (EWC), and her average weekly earnings over the period of eight weeks ending with the qualifying week must not be less than the lower earnings limit for National Insurance purposes.

She must also have reached, or have been confined before reaching, the 11th week before the expected week of childbirth. Confinement refers to the birth of a child, whether living or dead, after 24 weeks of pregnancy. A woman who suffers a miscarriage before the end of the 24th week of pregnancy and is absent from work will not be absent due to confinement and therefore will not be eligible to receive SMP.

However, if a woman has a stillbirth after 24 weeks of pregnancy, SMP will be payable.

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