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IVF ruling signals way forward for employers

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The pregnancy status for women undergoing IVF treatment has been made clear to employers following a recent ruling from the European Court of Justice (ECJ).

European Union judges ruled that an Austrian woman undergoing IVF treatment, who was sacked three days before her fertilised eggs were implanted, was not pregnant under EU law. However, she was protected by the law on the equal treatment of men and women.

Rachel Dineley, employment partner and head of the national diversity and discrimination unit at Beachcroft LLP, commented: “With one in seven women experiencing difficulties in conceiving, many more women, and therefore employees, 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.”

According to Beachroft, it is at the point of pregnancy that female workers have the protection of the Pregnant Workers Directive. The ECJ has now made it clear that IVF treatment is likely to fall within the Equal Treatment Directive, even if the employee is not yet technically pregnant.

“This means that UK employers should, in practice, take a supportive approach to women who are undergoing IVF treatment. To subject a woman to any form of detriment as a result of undergoing treatment risks a claim under the Sex Discrimination Act at the very least,” warned Dineley.

Referring to the ECJ’s judgement as sound, Dineley added: “Offering protection under pregnancy laws to IVF patients before implantation would cause huge complications if that implantation was then deferred.

“However, it is right that female workers undergoing IVF should receive protection from sexual discrimination, and employers should be mindful of their legal obligations to employees in these circumstances. Good employers will be sensitive to the needs of women undergoing this treatment, avoid asking invasive questions and respect their wish to pursue treatment, making appropriate adaptations to work arrangements to accommodate this where necessary.”

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Annie Hayes

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