This week Nadia Hoosen, senior solicitor at Clarkslegal LLP and Helen Badger, an employment law expert at Browne Jacobson provide advice on whether absence for IVF treatment should be regarded as sick leave.
The question:
I have had a question asked by an employee about whether time that she needs to take off in a few months time after a course of IVF treatment (two weeks where she basically needs to rest to try and ensure the pregnancy takes) is sick leave or whether she needs to take holiday.
I can see this both ways … it is a voluntary treatment (is it different to say someone who has chosen to have cosmetic surgery) and as such not sick leave … or it is a medical procedure to correct something that has gone wrong with the body (such as a knee operation)?
Does anyone have any experience of how this has been treated elsewhere?
As yet, I have formed no view as to what we should do. The individual in question has been with us just short of one year and has had little time off sick. Contractual sick leave is 13 weeks in 12 months.
The answers:
Nadia Hoosen is a senior solicitor at Clarkslegal LLP 
This is a risky area of law and we would advise employers to take a cautious approach.
It is unlikely that your sick pay policies would cover something of this nature. Of course, this will be dependent on the wording of your particular policy and what the company’s custom and practices have been in the past.
There is very little written about this issue and there haven’t been any reported cases specifically relating to payment of sick pay and IVF providing us with guidance. Due to the fact that it is a very grey area, employers could try and get away with refusing sick pay although they should permit the time off work. However a cautious employer would pay sick pay in this instance.
Employers should note that any IVF treatment could be on going, in which case an employee may ask for more time off in the future. If you do allow her to claim sick pay in this instance it may set a precedent for future time off. It may be worth establishing clear guidelines, so that you are able to manage her time off and clarify what will happen (in terms of pay and leave) if more leave is required.
Employers should be aware that any decisions they make relating to employee receiving IVF treatment could have sex discrimination implications.
A woman may succeed in a sex discrimination claim relating to dismissal or detrimental treatment that is related to fertility treatment, if she can show that a man undergoing fertility treatment is or would be given more favourable treatment in similar circumstances, or the employer has treated her less favourably because she might become pregnant. There has also been a case in which it was held that dismissal of a woman because she was absent for IVF treatment was pregnancy related and therefore unlawful sex discrimination.
Nadia can be contacted at: nhoosen@clarkslegal.com
Helen Badger is an employment law expert at Browne Jacobson
Assuming there is nothing in the employment contract stipulating that recovery from voluntary treatment does not carry sick pay entitlement, this comes down to interpretation. It is certainly arguable that as this treatment is voluntary, the employee should take the required time off from her annual leave entitlement.
However, if the employee were to obtain a medical certificate from her GP or consultant stating that he has advised IVF, you would be obliged to honour her right to sick pay. I anticipate that many GPs would provide a medical certificate in these circumstances.
In the absence of a medical certificate, you should weigh up all the factors when deciding what action to take. You need to consider the impact of any decision on your relationship with your employee, and indeed your employees in general. A refusal to treat the recovery time as sickness absence could have a negative effect on the employee and lead to problems in the future. Many might consider it appropriate of a caring employer to treat this as sickness absence and pay contractual sick pay.
A note of caution, though: if you do treat this case as sick leave, you may be setting a precedent. If, for instance, you were to refuse a later request from a male employee wanting to undergo some form of voluntary treatment, you could leave yourself open to claims of discrimination.You would need to establish why the two circumstances are different, for reasons other than the employees’ gender.
I would advise that, if no medical certificate is provided and you decide to treat the absence as sick leave, the factors taken into account in coming to this decision should be recorded on the employee’s file. This can be referred to at a later stage if asked to justify this or a future decision.
Helen can be contacted at: hbadger@brownejacobson.com
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HRZone highly recommends that any answers are taken as a starting point for guidance only.
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2 Responses
Does IVF treatment qualify for sick leave
In New Zealand the situation seems a little clearer…..our Employment Court has determined that sick leave is for when you are sick, and does not cover preventative treatment etc. Of course some employment agreements extend coverage into this area. What I wanted to comment on however was the indication from answers to the original question, that a medical certificate was the final arbiter. We have a huge issue in my country with medical practitioners issuing certificates where they have no concern as to whether or not the illness or injury prevents the person doing ‘light duties’ or some alternative work. As a result we challenge certificates where we believe the doctor has no idea of the workplace, and especially where they have only the word of their patient whom they have interviewed over the phone. I would be interested to hear if that is so under British employment law, and what experiences others have had. Email me if you wish at donassociates@xtra.co.nz
Cheers
Don Rhodes.
Medical certificates
I know somebody who was in this situation some years ago. She undertook the course of treatment to prepare herself for the IVF whilst attending work as normal and then, because she didn’t want anybody to know about it, took holiday for the ‘resting time’. Unfortunately the IVF didn’t work and the stress of the situation and the pain and upset that she felt meant that she was unable to cope with work and she took time off as a result. This time was medically certified.
It is a complex and very personal situation and whatever decision you make with the benefit of the advice provided here it is worth noting that your employee may have difficulties coping with an unsuccessful treatment.