IVF and fertility
Infertility is estimated to affect one in seven heterosexual couples in the UK. There is no statutory right to take time off work to undergo IVF investigations or treatments. IVF appointments should be treated in the same way as other medical appointments.
Women undergoing IVF have limited protection against discrimination under the Equality Act 2010. One cycle of IVF takes an average of between four and seven weeks with the medical implantation procedure at the very end. Women only receive protection against discrimination when the fertilised ova are implanted. If the implantation is successful, the woman then receives protection as a pregnant woman. If the implantation is not successful then the protected period ends two weeks later.
Although this protected period doesn’t cover the whole treatment cycle, it’s likely that any adverse treatment against a woman undergoing IVF treatment which took place outside this short, protected period would be treated as normal sex discrimination.
Women may be reluctant to tell their managers or work colleagues that they are undergoing IVF, so employers need to be mindful and sensitive of this in discussions with women – particularly if they request time off for multiple medical appointments.
Postnatal depression affects more than one in 10 women and can often affect women once they have returned to work. There is no specific legal protection for women once their maternity leave has ended.
Employers should treat postnatal depression in the same way as they would any other sickness. While postnatal depression often does not meet the threshold for disability, it can where an employee is experiencing serious and complex symptoms which last, or are likely to last, 12 months or more and have a substantial impact on their daily activities.
Where a woman does meet the criteria, employers need to consider whether any reasonable adjustments are needed to support them. Any disciplinary action could be discriminatory if these issues are not considered. Where a woman does not meet the criteria, an employer can treat it as any other sickness absence when carrying out internal processes such as disciplinary and sickness absence processes.
It’s best practice to seek advice from occupational health or a GP before taking any formal action against a woman suffering from postnatal depression, to ensure that any issues can be addressed up front.
Hidden disabilities such as endometriosis, MS and fibromyalgia
Some hidden disabilities seem to be more common in women, eg, multiple sclerosis (MS) and fibromyalgia. Other conditions like endometriosis only affect women.
MS is specifically listed as a disability in the Equality Act. The other conditions are not, but depending on the severity of the symptoms they may amount to a disability. Employers should make sure they have up to date medical advice and follow any recommendations to avoid inadvertently discriminating against somebody in these situations.
Perimenopause and menopause
Perimenopause and the menopause were once taboo subjects in the workplace but they are currently the focus of a widespread education campaign.
Failing to correctly manage perimenopause and menopause at work could lead to sex, age, and/or disability claims. An employer is required to make sure that health and safety checks are in place and that steps are taken to minimise or remove any risks which are identified. For instance, the employer could assess the temperature and ventilation and whether cold drinking water is easily accessible.
Some changes that employers could implement include providing a fan, allowing workers to take breaks when needed, considering flexible working arrangements, moving desks closer to an open window or air source.
ACAS has suggested that having a neutral third party to speak to may help employees feel more comfortable. HR, trade union representatives, a counsellor from an Employee Assistance Programme, or a menopause or wellbeing champion could be suitable alternatives.
Claire Merritt is a partner at Paris Smith