Fertility Leave – Time Off For IVF Treatment

Employees seeking fertility treatment face an often stressful and exhausting medical process. The ability to take fertility leave in order to have time off for IVF can help if it is available. But what rights do staff have during fertility treatment, and how should the medical appointments be treated?

Understandably, many staff will be wary of revealing they are having fertility treatment. The process of trying to conceive may take some time, and privacy will be important. However, there are many medical appointments to navigate, many of which will be taken during working hours.

Our guide looks at the employment rights of women during the IVF process, and explores how to approach time off with your workplace.


Letting Your Employer Know About Your IVF Treatment

The IVF process can be very punishing. It involves many medical appointments, and daily medication. If you don’t let your employer know, or give vague reasons for taking time off sick, it might lead to concerns about your performance.

This means it might be a good idea to let your employer know about your fertility treatment.  You may be able to agree to flexible working or a combination of paid and unpaid time off to get through the process.


Time Off For Fertility Treatment

There is no statutory right to time off for fertility treatment. However, many workplaces do offer fertility leave as a contractual benefit. Consult your employee handbook to see if this type of leave is offered by your employer.

If your employer does not offer fertility leave, then time off for IVF treatment will be covered by policies for medical appointments. If you suffer sickness as a result of fertility treatment side effects, it should be treated the same as sick leave.


Taking Leave

The involved nature of IVF means you’ll need a lot of time off to attend medical appointments. 

Here’s a few suggestions on how your employer could help you navigate your treatment.

Your employer could allow:-

  • Flexible working to allow you to fit in appointments.
  • Use of paid holidays to help with time off during the process.
  • An element of unpaid leave if needed.

Using Sick Leave

Sick leave cannot be used as part of IVF leave. However, there are some scenarios during treatment where you would have the right to be signed off work.

These include:-

  • Time off to come to terms with an unsuccessful IVF cycle. This can be a distressing time when mental health is challenged. Your GP should be able to help.
  • Situations where the physical side effects of IVF treatment leave you unable to work.

Falling Pregnant

Once your embryo transfer has taken place, your protected rights under pregnancy law kick in. That means your employer must give you time off for antenatal appointments.

If you suffer a miscarriage, you will be entitled to sick leave. If you need time off after a miscarriage, it must be recorded as pregnancy related sickness. This means you can’t be discriminated against or disadvantaged for taking sick leave.


Employment Rights During IVF Treatment

At the moment, there are no specific legal protections offered to women undergoing IVF and other fertility treatments. Infertility isn’t a protected characteristic under the Equality Act.

However, some conditions which cause infertility, or occur in connection with infertility could be considered disabilities. These would be covered under the Equality Act, which means employers must give careful consideration to the rights of women during fertility treatment.

The EHRC (Equality and Human Rights Commission) statutory code of practise contains guidance on the issue for employers. 

The guidance says:-

  • When a woman requests time off for IVF treatment, the request must be treated the same as one made by a man in the same, or a similar situation. Failing to do this might amount to sex discrimination.
  • After an embryo has been implanted during fertility treatment, pregnancy protection rights kick in. The woman is considered legally pregnant and has protection from unfavourable treatment, and the right to time off for antenatal care. These rights extend to time off for antenatal appointments.
  • If the treatment fails, pregnancy rights last until 2 weeks after finding out an embryo transfer was unsuccessful.
  • The EHRC recommends that employers take a sympathetic approach to requests for IVF leave. They also say adopting a formal policy to deal with such requests is advisable. Ideally the policy would allow women to take unpaid or annual leave to get treatment.

IVF and Sex Discrimination

Treating a woman undergoing IVF in a detrimental way for reasons connected to the treatment could leave an employer open to a claim of indirect or direct sex discrimination.


Direct Sex Discrimination

If an employer refused to give time off for IVF treatment but allowed a male employee time off for elective surgery, this could be deemed sex discrimination. The claim might be justified because she had been treated less favourably than a male colleague in similar circumstances.

A 2008 ECJ ruling found the dismissal of a woman who was dismissed during her IVF treatment but before implantation, was sex discrimination.  


Indirect Sex Discrimination

An indirect sex discrimination might also be successfully brought if an employer’s actions disadvantaged women undergoing fertility treatment. It could be demonstrated that women are particularly disadvantaged because treatment is more involved for women and would involve more time off work than their male counterparts would need.

https://workingfamilies.org.uk/articles/workplace-rights-for-those-undertaking-ivf-treatment/

Further information on navigating the IVF process and getting leave from work can be found on the ACAS website and Working Families.

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