Managing fertility challenges in the workplace

In its guide “Fertility challenges, investigations and treatment: Guide to offering workplace support”, the CIPD have identified five principles that employers should follow when seeking to provide help and support to their workforce on fertility issues:

1. Raise awareness. Investigation and treatment of fertility issues is a wellbeing issue, and education and support should be offered to all staff to help with the mental and physical impact this can have.

2. Create an open, inclusive and supportive culture is vital to embedding this into the organisation.

3. Develop an organisational framework to support employees experiencing fertility challenges, investigations or treatment.

4. Manage absence and leave with compassion, clarity and flexibility.

5. Equip line managers to support people with empathy and understanding.

Why is fertility an issue for the workplace?

Fertility issues alone are enough of a concern for those who face them, but the challenges can be compounded by an unsupportive employer. Employers who are failing to address the issues faced by their staff not only run the risk of discrimination on grounds of sex but they also risk losing valuable staff members as they find the pressures of undergoing fertility investigations and treatment too much to bear alongside the pressures of work.

Research by insurance company Zurich found that IVF treatment can also lead to worries about job security and career progression, leading many to not disclose treatment at work. It found:

• More than half of women (58%) who undergo IVF treatment do not feel able to tell their employer. The most common reason given for this was fear of losing their job.

• Worries over career progression and job security are the primary causes of women holding back IVF disclosure, with a third (32%) fearing it would cost them their job and a quarter (26%) concerned it would make them seem less committed to their role.

• More than one in 10 (12%) women undergoing IVF quit their jobs due to a lack of support from their employer. Nearly one in seven (14%) are forced to reduce their working hours, with a similar figure (13%) taking on lower paid roles.

• Women in same sex relationships were twice (27% versus 13%) as likely to take a demotion as those in heterosexual relationships, the study revealed.

These findings show that businesses need to do more to reassure employees that fertility treatment will not have the impact they fear and design practical measures to make sure this is the case.

• potential strain on relationships both inside and outside work.

The legal position

Whilst the fertility treatment process is not protected in the workplace by the law, there are still some legal issues to consider:

• Once an embryo is implanted through IVF, the employee is classed as pregnant. This will be the case even if it is subsequently determined that the IVF treatment has not been successful. If the procedure is successful, then the usual maternity rules apply. If not, the employee continues to be protected for a further two weeks.

• The 2008 ECJ case of Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG, found that an employee couldn’t be regarded as pregnant simply because they are undergoing IVF treatment. However, the ECJ did rule that treating a female employee unfairly in this situation may still qualify as direct sex discrimination. Although the UK is no longer in the EU, all previous EU case law is treated as though it were made by the UK’s Supreme Court, so will still apply.

• Whilst not law, and not binding on employers other than so far as it is used as evidence in legal proceedings, the Employment statutory code of practice recommends that employers treat time off for fertility treatment sympathetically, suggesting that a policy or procedure is put in place in the workplace.

There is the possibility of legal change to come. The Fertility Treatment (Employment Rights) Bill was first introduced by MP Nickie Aiken in June 2022 and had its second reading in Parliament on 25 November 2022. The Bill proposes a new statutory requirement on employers to allow staff to take time off from work for fertility treatment and related appointments.