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Happy Monday! It’s a fresh new week, I hope you had a lovely weekend dodging the April showers, although saying that we did have a lovely day of sun yesterday finally! You know you’re getting old when that makes you excited for putting the washing out on the line, and not to get into a beer garden! We had a very much needed child-free weekend just me and my husband and to celebrate our freedom… he took me fishing. Now, I’m not going to complain, and I definitely don’t get my hands dirty when we do go, I just read my book on the bank, so there’s no complaints here.

Today I’m back to reality and my car is having an MOT (fingers crossed it passes!) and I’m going to the dentist – a very Monday-y Monday indeed, and the rain is back too, boo.

Anyway, onto the more interesting topic of IVF and discrimination in the workplace. Do you know what rights employees have when it comes to fertility treatments?

Whilst there’s currently no specific employment laws to support employees undergoing fertility treatment, or facing fertility issues, that’s not to say there’s no protection at all or any other legislation which may come into play for employees who are facing these issues. And don’t forget this is one area where there may be changes on the horizon – the Fertility Treatment (Employment Rights) Bill is still working it’s way through Parliament, although it does seem to have stalled at the minute.

But let’s have a look at the ways in which staff going through assisted conception currently have…

First, if the situation is handled really badly, an employee may decide to resign and try to claim constructive unfair dismissal. This can happen if the employee feels they are unsupported or if their situation is handled differently to others, or with a lack of understanding or sympathy. Essentially, they would be saying that the employer had handled things so badly, they had breached a fundamental term of the contract of employment and the employee couldn’t tolerate that so had no choice but to resign in response. Even if they don’t go as far as trying to make a claim against you, it may damage employee relations and morale.

Second, there are also the potential claims of discrimination, as typically these issues will effect women or people born a woman, as it will be them who are having the tests and medications, more often than men..

That being said, there isn’t actually specific “assisted conception” protection under the Equality Act 2010 but it still provides the best protection for those going through fertility challenges. Outside of claims for sex discrimination which I’ve referenced above, the most common protected characteristic relied on by those going through assisted conception processes is pregnancy and maternity. This is where a bit of knowledge will go a long way for you, so let me explain how fertility treatment interplays with the pregnancy and maternity protections under the Equality Act.

It’s important to note that the second the embryo is reintroduced into a person’s body, they will be classed as pregnant, and therefore have pregnancy rights in the workplace. They will be protected from this moment and throughout the protected period (i.e. up to the end of maternity leave) where the treatment is successful or up until two weeks after an IVF cycle is classed as “failed”, or the pregnancy ends for other reasons. Whilst it is important to know therefore what stage an employee is going through during their IVF, this needs to be handled really sensitively as not every employee will comfortable sharing this private information.

What can you be doing about this? Well, the struggles of trying to have a baby affect so many, and it is likely that you have employees going through these issues. Having an open and supporting workplace is going to help these employees, and in turn create an environment where people enjoy working and are more productive and loyal to the company. We ran through some practical tips and tricks to achieve this last year CLICK HERE and it’s worth refreshing yourself.

As always, if you have any questions or need support with an employee going through IVF, please contact myself or one of the team who will be more than happy to help.