Employee wellbeing: Life events – Are you an employer of choice?

In this fourth article in our Employee Wellbeing series we take a look at the business rationale for employers providing support to employees undergoing fertility treatment, and how best to do this.

Why is this important?

Many individuals experience fertility issues: it is estimated that 1 in 7 couples have difficulty conceiving in the UK.[1] There are many causes of infertility but there are treatments that can help. This article will primarily focus on individuals undergoing in vitro fertilisation (IVF), given the duration of treatment and the particular physical and mental toll it can have on affected employees; however, there are a number of other treatments employees may be undergoing which can necessitate time off work.

IVF involves removing ova from an individual’s body, fertilisation and implantation. IVF procedures (and fertility treatments in general) can be invasive and painful, while accompanying treatments (such as hormonal injections) likewise can be physically taxing.

Infertility, and associated treatments, can have a significant impact on a person’s mental health: they may experience depression, anxiety and feelings of hopelessness, guilt and frustration. Affected individuals may also withdraw socially, and can experience both financial and relationship/marital problems. This can have a profound effect upon their daily lives.

The legal position

Presently, employees undergoing fertility treatment do not have a statutory right to paid or unpaid leave for the purposes of undergoing that treatment, but employers must treat absences to attend fertility appointments just as they would any other medical appointment.

Case law indicates that employees ought to be given time off during the latter stages of IVF treatment, and they must not be treated less favourably because of this. The following principles have also been established:

• sex discrimination laws protect an employee having IVF treatment from the moment the ova are collected until implantation of the fertilised ova in the uterus;
• once this has taken place, the employee is protected from pregnancy and maternity discrimination and must not be dismissed or be subjected to a detriment as a result;
• however, if implantation is unsuccessful and the pregnancy ends, protection ends two weeks after the date upon which the employee discovers that IVF has failed.

Any information relating to an employee’s health is special category data, and employers must therefore comply with the UK General Data Protection Regulation and Data Protection Act 2018 when processing any information about an employee’s fertility treatment. Employers must also ensure that this information is handled sensitively and confidentially.

Why support matters

Many individuals experiencing fertility problems are employed, and will therefore be contending with the stress of infertility and treatment alongside work pressures and demands. A recent survey by the Fertility Network found that 38% of those interviewed (who were undergoing fertility treatment) considered leaving their jobs; 36% took sick leave; 19% had to reduce their working hours and two thirds felt less engaged with their work.

Many individuals also worry that discussing such matters with their employer will hinder their career progression or their job prospects. It is therefore important for employers to foster an inclusive, supportive environment in which employees feel comfortable discussing such matters, should they choose to do so.

In some cases, failing to provide support to affected individuals risks potential discrimination, harassment and unfair dismissal claims.

What can employers do?

Increasingly, employers are seeking to provide further support for employees undergoing fertility treatment amidst the growing recognition of the physical and mental stress it can cause. It is therefore sensible for employers to proactively consider their approach and have a clear policy which is communicated to employees.

The Equality and Human Rights Commission Employment Statutory Code of Practice recommends that employers treat requests for time off for IVF treatment ‘sympathetically’. Specifically, it suggests ‘allowing a woman to take annual leave or unpaid leave when receiving treatment and designating a member of staff whom they can inform on a confidential basis that they are undergoing treatment.’

ACAS also provides useful guidance on how to manage affected employees. A comprehensive fertility treatment policy will help employers align with best practice and can serve to direct employees to available support within the organisation and signpost them to individuals with whom they can speak confidentially about their treatment and any concerns they may have. The policy may also, for example, offer periods of paid or unpaid leave or flexible working options to assist employees undergoing treatment. Other measures which some companies are adopting include introducing discounts for fertility treatments, free consultations with fertility experts and/or a fertility education programme.

DLA Piper’s Employment team can advise you on your business’ approach to fertility treatment, assist you with implementing an appropriate policy and provide training to your staff. For further information, please speak to your usual DLA Piper contact or email employment@dlapiper.com.

You may also wish to fully review your organisation’s diversity and inclusion strategy, and your compliance with legal obligations, by completing the DLA Piper Diversity and Inclusion Index.

Our Employee Wellbeing series:

• The business case for employers reviewing their strategy on employee support;
• The menopause: A business critical issue for employers;
• Supporting employees through baby loss and neonatal treatment;
• Domestic abuse: Providing support and empowering employees (coming soon).

[1] https://www.nhs.uk/conditions/infertility/