The issues around fertility have become more and more apparent. With 20 per cent of couples facing fertility challenges, around 5 per cent of babies born are conceived via fertility treatment. This is against the challenging background of one in three pregnancies ending in miscarriage. Struggles to have a baby are likely to affect the majority of workplaces and there are efforts to make the subject of fertility more open and supported both in the workplace and more widely in society.
There is very little law around how to deal with fertility issues in the workplace. Employees who are undertaking fertility treatment have no direct protection and that includes in relation to fertility investigations and the preparatory steps for IVF (in vitro fertilisation). IVF is a process when an egg is taken outside of the mother’s body and fertilised externally; the egg becomes an embryo and is then returned to the woman’s body.
From an employment law perspective, the minute that the embryo is reintroduced to the woman’s body, she will be meeting the definition of pregnant for the purposes of pregnancy-related discrimination. She remains protected as pregnant from this moment until two weeks after a failed IVF cycle or the pregnancy ends. This is called the ‘protected period’.
If an employee explains to an employer that they are going through IVF, the employer needs to be mindful that there will be protection for pregnancy-related discrimination issues.
Practically, this is an incredibly sensitive subject and so it’s difficult to speak to a woman about exactly when an embryo is reintroduced. It’s therefore extremely unpalatable for businesses to probe closely into the process to understand the exact dates from which protection arises. Employers should tread carefully throughout this entire period because it could result in a pregnancy discrimination claim. Best practice is to actively support employees during this time. Both prospective mothers and fathers can find this period incredibly stressful.
The tragic side of fertility issues is miscarriage: the terrible grief of being pregnant and then losing that baby. There have recently been two private members’ bills dealing specifically with miscarriage. The first, introduced in June 2021, was advocating for paid leave for those who experienced miscarriage before 24 weeks. The context being that a baby loss after 24 weeks would trigger maternity leave protection.
The second bill was to extend the recent change to the law for parental bereavement leave to those that experience miscarriage. Neither have progressed through parliament and the protection appears to have stalled.
Organisations are currently in the unenviable position of having no obvious route to support these employees at such a difficult time. There is some limited protection in the two weeks after a miscarriage for pregnancy-related discrimination but there is no broader protection.
Many employees suffer in silence during these miscarriages and are reluctant to explain more to their employers. Those who have lost pregnancies before 12 weeks may not have yet told their employer and will claim ‘sickness’, never explaining the truth behind their absence.
Best practice for businesses is to be sensitive and supportive around miscarriage. Some employees will not want to disclose this information to their employer and those who do will want to be treated with sympathy and respect. This is a highly emotional area and, while it may fall within the sickness regime, this seems inadequate to deal with the emotional pain of such losses and challenges.
Claire Merritt is a partner in the employment team at Paris Smith