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Employees' rights during IVF treatment

In Vitro Fertilisation (IVF) is a process of fertilisation which happens outside a women's body to help her become pregnant if there are fertility problems. It can typically take between four and seven weeks for one cycle of IVF treatment. IVF does not always result in a pregnancy.

Key points

  • There is no statutory right for employees to take time off work to undergo IVF investigations or treatment.

  • In what can be the last part of an IVF process, embryos (the combination of sperm and egg) are placed inside the woman's body. This step is called embryo transfer. Once she has reached this stage, she should tell her employer she has had an embryo transfer and may become pregnant.

  • If after the embryo transfer, one of the embryos attaches itself inside her body, this is called implantation and this is when she is legally regarded as pregnant. The complication here both for the woman and the employer is that she will not actually know whether implantation has taken place and that she is pregnant until she can take a pregnancy test. After the embryo transfer, she will need to wait up to two weeks before she can take a pregnancy test.

On that basis, and because of the uncertainty in the early days whether she is pregnant or not, it is advisable for the employer to regard her both as pregnant from the stage of embryo transfer and protected against unfair treatment because of pregnancy and maternity. If her pregnancy test then proves positive, she should tell her employer. She should confirm her pregnancy in writing.

 

  • She continues to be covered against pregnancy and maternity discrimination during her pregnancy and until her maternity leave ends, or she returns to work or opts to leave employment. The protection against pregnancy and maternity discrimination is called the protected period. To find out more about the protected period, see Acas guide pdf icon Pregnancy and maternity discrimination: key points for the workplace [511kb].
  • If the pregnancy test proves negative, her protected period ends two weeks after she has been told her attempt at implantation (pregnancy) has proved unsuccessful.

Protection against unfair treatment

Although there is no statutory right for employees to take time off work for IVF treatment, employers should treat medical appointments related to IVF the same as any other medical appointment under the terms and conditions of the contract of employment. Employers may agree to flexible working arrangements or a combination of paid, unpaid, or annual leave during the treatment.

Sometimes employees may not be able to work because of the effects of IVF treatment. In many cases, they will be given a fit note by their GP saying they are sick. In other circumstances, they may self-certificate their absence for up to seven days.

Where absences during the 'protected period' result from the effects of IVF treatment, employers:

  • must not count the absences as part of something that triggers an absence management process
  • must not use them for disciplinary purposes
  • should keep records of these absences separate from other types of absence.

To find out more about managing absence during pregnancy see the Acas guide pdf icon Pregnancy and maternity discrimination: key points for the workplace [511kb].

Also, a woman on sick leave during IVF treatment might claim sex discrimination if treated unfairly.

Further, it is important to understand that once the protected period ends, it can still be unlawful to treat the employee unfairly because of her pregnancy, maternity or breastfeeding. This might be because the unfair treatment stems from a decision taken during the protected period. Or, she might claim sex discrimination.