Going through IVF treatment can be an extremely stressful time for a couple. Infertility is a medical condition and IVF is one of the possible treatments for the condition. The treatment involved carries a number of medical risks including adverse side-effects of hormone treatment, ovarian hyper-stimulation syndrome (a dangerous over-reaction to fertility drugs), miscarriage, ectopic pregnancy and multiple births. Of course, the need for such treatment can also lead to different emotional reactions by the individuals going through it, such as guilt, shame and embarrassment. An individual may worry about their future careers if employers find out they are having this treatment – all legitimate and real concerns which need to be handled carefully and with sensitivity. That said, an employer should not be afraid of managing the issue.
A woman going through IVF is not allowed to simply take whatever time off she decides. The rules governing how much time someone is allowed to take off if they are going through this treatment should be covered by a policy detailing a provision which allows people to take time off for medical appointments. If employers don't have such a policy, then they should. The benefit of this is that employees will then be clear on what they can and cannot do. This leaves less scope for an employee to successfully argue that any particular treatment received during IVF treatment is based on some form of unlawful discrimination. It also provides consistency of approach in a business. Within such a policy, it may be advisable to deal specifically with what happens in the case of IVF treatment, because for many managers, there is a huge concern that they may get it wrong and expose the business to risk. If there is something set out in black and white, they can use that to navigate through the situation with confidence and compassion.
In simple terms, a woman going through IVF has no protection under discrimination law afforded to pregnant women, until the point immediately before implantation and for up to 4 weeks after, if the pregnancy is unsuccessful. If the pregnancy is successful then the protection period runs to the end of the maternity leave period. Even then, the protection is less favourable than others. It does not mean that an employer cannot make the normal business decisions and follow the usual processes in respect of that person, as it would in respect of other members of staff. As a general rule, compassion, coupled with process, is a successful combination to reduce the risk of such a situation turning sour.
Employers should be aware that if they do not deal with individuals going through IVF in a consistent manner, they could expose a business to risk. Sometimes it is hard to apply process where emotion is involved, but it is important to do so.
Vanessa Di Cuffa, partner specialising in employment at Shakespeares
