Woman was unfairly dismissed after successful IVF treatment, tribunal rules

Judge finds administrative assistant suffered pregnancy discrimination, as experts highlight rights of employees undergoing fertility treatment

An administrative assistant who underwent IVF treatment was unfairly dismissed and discriminated against by her employer after she told her boss she was pregnant, an employment tribunal (ET) has unanimously ruled. 

The Birmingham ET heard that Gita Karavadra, who worked for the Smethwick-based BJ Cheese Packaging, had taken time off work to undergo fertility treatment, but was not allowed to return to work after she told her employer she was pregnant.

The ET found Karavadra’s dismissal had not been considered before she informed them of her pregnancy, and therefore her pregnancy was the principal reason for her dismissal.

Karavadra worked as an administration assistant for B.J. Cheese Packaging from 29 January 2018 until her dismissal in August 2018. On 7 February she told her boss, N Jhinjer, a director at the company, that she was hoping to start IVF treatment in the future. 

Before the treatment started, she told Jhinjer she would like to request one month’s annual leave at the appropriate time to ensure she could rest after treatment.

From 25 May to 26 June, Karavadra attended a number of appointments at a fertility clinic, and she booked a month’s holiday on 24 June to begin three days later. 

On 13 July Karavadra found out she was pregnant. She texted Jhinjer to request an additional two weeks off, but did not disclose her pregnancy at that time. Jhinjer replied to say there was no problem with her taking the extra time.

On 8 August, Karavadra messaged Jhinjer to say she would return to work on 13 August and could start at 12pm after a doctor’s appointment. The tribunal heard she received no response to this message.

Jhinjer called her a few days later on 10 August, during which he said her “long holiday” had resulted in staff shortages and meant he had to cancel his own holiday. She told him she was pregnant during this conversation, to which he responded that he expected she would need “a lot of time off due to her pregnancy”. He suggested she take a further two to three months off. 

Karavadra said she did not wish to take any further time off and wanted to return to work. Jhinjer said he would call her back.

The tribunal heard Karavadra did not hear back from Jhinjer again despite chasing him by telephone. 

Because she received no response from Jhinjer, on 22 August Karavadra went to the company’s office with the intention of speaking with another director. However, the second director said he was unaware Jhinjer had agreed for her to take “such a long holiday”, and did not believe it would have been something he would have approved, adding that he was unaware Karavadra had undergone IVF treatment.

Karavadra asked to be allowed to come back to work but was told “they would not allow her to return”. The tribunal took this as her effective dismissal; however, when she subsequently received her p45 on 6 September, it showed a leaving date of 13 July 2018. 

Karavadra brought claims of pregnancy/maternity discrimination and unfair dismissal to the ET on 1 December. 

Speaking to the tribunal, Jhinjer denied knowing Karavadra underwent IVF treatment or her subsequent pregnancy. He denied any conversation with Karavadra about her request for a month off and told the tribunal it was a company rule that “no one could have more than two weeks off at a time”. 

He argued that Karavadra failed to return to work after having a month’s holiday, and the company waited for a month before processing her p45 with a leaving date of 13 July, which was the last day of her agreed holiday. 

But the ET preferred Karavadra’s evidence, ruling she had been unfairly dismissed and the principal reason for her dismissal was her pregnancy, which made it discriminatory.

Elaine Huttley, a senior associate in the employment team at Irwin Mitchell, described fertility treatment as the “Schrödinger's cat” of pregnancy when it came to employee’s rights, and it was best to treat employees going through IVF as if they were already pregnant.

“With IVF treatment, the protected period can be uncertain because the problem is that an employee still has to wait two weeks after IVF treatment to confirm if they are pregnant,” Huttley said.

“Acas says employers should treat the protected period as starting when the embryo has been transferred during IVF treatment.”

She also said employers should have an ‘open door’ policy with employees to discuss family planning whether it is IVF treatment or even adoption, where employees might need to give advance notice of intention to take leave, adding that by empowering staff through family-friend policies and procedures businesses can gain a proven track record of being a supportive employer.

The ET ordered BJ Cheese Packaging to pay Karavadra £21,081.14 for loss of earnings and wages, statutory maternity pay, notice pay and injury to feelings.

BJ Cheese Packaging has been contacted for comment. Karavadra could not be contacted.