What you need to know as an employer
In the early stages of IVF – where the woman is undergoing suitability, or receiving hormone treatment – she is not yet pregnant and does not receive the protected status of a pregnant employee. If you either suspect that a staff member is undergoing IVF, or if she has told you, then you should exercise extra caution to ensure that she is not treated less favourably, which could constitute sex discrimination.
This employee will probably need time off for a number of medical appointments prior to conception. Check your company policy and internal practices comply with this. If a reasonable amount of paid time off is permitted to attend medical appointments, then be consistent as to what is “reasonable” across the workforce.
If the time off would usually be unpaid ensure you can demonstrate this is applied irrespective of the circumstance. It becomes tricky, and potentially discriminatory, if an employer allows paid time off for medical appointments to a man who is having a vasectomy for example, but not for a woman undergoing IVF treatment. Generally employers are encouraged to view time off for IVF sympathetically and in a similar fashion to antenatal appointments.
Women undergoing IVF are often advised to take it easy to help conception. This may mean that they ask to work fewer hours or reduce their responsibilities. Employers will need to assess this on a case-by-case basis and decide what is fair. Where the impact of such a request can be managed easily and is for a short period of time, the advice is to agree to it.
Protected status during pregnancy
With IVF treatment a woman is deemed to be pregnant when the fertilised egg is implanted in her uterus. From this point she has the same protected status and rights as any pregnant employee.
Many leave it as long as possible before disclosing their pregnancy because of IVF typically being higher risk. If you suspect an employee is pregnant, only bring it up if you have health and safety concerns. Once a pregnancy has been disclosed you should carry out a normal risk assessment.
Sometimes the pregnancy will be especially high risk, and the woman is signed off by a doctor for long periods of time, perhaps even the entire pregnancy. The other challenge can be staff morale, as employees may need to absorb an increased workload as a result. Employers are advised to be supportive to both sides.
Five practical top tips
1. Keep channels of communication open. Ensure the woman undergoing IVF feels supported and able to express any concerns.
2. Have a policy that covers IVF. Such policies are rare but should be part of your staff handbook. It should cover notification, time off pre-conception, requests to reduce hours/duties, counselling, sickness absence for reasons relating to IVF and how this sits within the overall sickness policy, unsuccessful attempts to conceive and/or miscarriage, and rights of fathers during IVF. Having such a policy is likely to attract and retain women generally as it denotes a family-friendly employer.
3. Listen to the remaining workforce. Reassure and keep them updated, with the permission of the employee undergoing IVF.
4. Offer to pay for counselling or allow time off for counselling should the IVF treatment be unsuccessful.
5. Monitor the impact on the business. It is easy to panic when one or more workers tell you that they are undergoing IVF. However, the employee may have negative feelings about taking time off and will often be keen to maintain and resume her workload as soon as possible.
Anita Rai is an employment law partner at legal services company Taylor Vinters