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Employment law must keep pace to protect alternative families

JMW Solicitors

A concerning number of employers and their staff remain in the dark when it comes to the legal rights of workers undertaking fertility treatment, warns JMW Solicitors.

There is currently no statutory right for employees to take time off work to undergo fertility investigations or treatment, but medical appointments related to In Vitro Fertilisation (IVF) and other assisted reproductive techniques (ART) should be treated in the same way as any other medical appointment. This might include agreements on flexible working arrangements or a combination of paid, unpaid or annual leave during treatment. Liz Cotton, partner and employment law specialist at JMW, says: “When dealing with a request for time off from a woman undergoing IVF, an employer must take care not to treat her less favourably than they treat, or would treat, a man in a similar situation, as this could amount to sex discrimination.”

Cara Nuttall, partner and family law specialist at JMW, says: “Alternative family structures and alternative routes to parenthood are becomingly increasingly common. We have seen a significant increase in the number of clients undergoing IVF, donor, co-parenting and surrogacy arrangements, as scientific advances make these methods of conception more accessible. As is so often the case, the law is slow to catch up, as are some people’s understandings of the law. “Legal parenthood can be a very complex issue and in some alternative family structures has to be assigned post birth through court applications.  Some employers struggle to understand how legal rights apply when parenthood is outside of the traditional model.”

A so-called ‘protected period’ applies to women undergoing IVF, which begins when fertilised ova are implanted and the woman is legally regarded as being pregnant. If the implantation fails and the pregnancy ends, the protected period will end after a further two weeks. If an employer treats an employee unfavourably during this protected period, including pregnancy-related sickness, the member of staff is entitled to claim pregnancy and maternity discrimination. She would also be entitled to time off for antenatal care.

Liz says: “We have seen significant developments in family-friendly rights, with the introduction of shared parental leave which came in last year, however, there is some way to go until traditional legislation applying to parents and those undergoing fertility treatment catches up with modern family structures. There is also more that needs to be done to educate employers about what requirements do exist in respect of those undergoing IVF and other fertility treatments, so that they do not fall foul of the law.

“I would always urge employers to treat requests from staff undergoing IVF treatment sympathetically.  Establishing procedures regarding entitlement to leave – whether paid or unpaid – for those undertaking fertility treatment will ensure that everybody understands the position and is on the same page from the outset. You might also consider having a ‘go-to person’, to whom anyone undergoing such treatment can speak openly and on a confidential basis. This proactive approach will protect and educate employers and employees alike.”

Cara adds: “We see many clients for whom the birth of a child is the culmination of months and often years of difficulties, and the stress and emotional impact can be increased if they struggle to obtain the amount of flexibility they need at work.  Such arrangements can be physically as well as emotionally demanding.”

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