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We look at the proposals in a Private Member’s Bill to give those going through fertility treatment paid leave for medical appointments and steps employers can take to support their workers through fertility treatment.
Fertility challenges affect millions of employees in the UK. It is thought that as many as one in six couples experience fertility difficulties, but there is currently no statutory right to time off for fertility treatment in the UK.
Fertility treatment can be physically, emotionally and financially draining. However, many employees undergo treatment and may experience side effects, complications and the loss of a failed treatment without telling their employer what they are going through. These issues affect a cross-section of society, including heterosexual couples, same-sex couples, LGBTQ+ employees and single people.
Fertility treatment can have a substantial impact on people’s working lives. Of those who experience fertility issues, 72% said it impacted their working life and 41% struggled to stay on top of their work, according to Fertifa’s white paper, ‘Building a Business Case’. 35% felt their career was damaged because of treatment, according to a survey by Fertility Network UK, and over one-third of employees considered leaving their jobs.
With many people having to go through multiple cycles of treatment, those going through fertility treatment can accumulate a lot of time off. 60% take unexplained absences from work (Building a Business Case White Paper). The same number of people felt that they had to hide the real reason for taking time off for appointments and fertility-related illness (Fertility Network UK).
Frequent absences from work, particularly if they are unexplained, can lead to an employer triggering their absence management processes, particularly if the employer is not aware the employee is undergoing fertility treatment, adding to the pressures already faced by employees going through fertility treatment.
Fertility treatment can also take a severe toll on mental health, with 90% of those experiencing infertility reporting feeling some level of depression and 42% feeling suicidal (Building a Business Case White Paper).
Over half of employees experiencing fertility issues feel that they do not receive adequate support from their employers, according to the Fertility Network UK.
Fertility treatment can involve frequent medical appointments which may mean employees taking time off work, but there is no statutory legal right to time off for fertility treatment.
Although pregnant employees have a right to time off for antenatal appointments, fertility treatment does not usually fall within the scope of antenatal appointments. This is because an employee is only treated as being pregnant when they have had an embryo transfer, which is the last stage of the IVF process. Similarly, there is no specific right to time off for intrauterine insemination or other types of fertility treatment.
Employees wanting to take time off at any point in the fertility treatment process before this last stage may find themselves having to resort to using annual leave or sick leave.
Acas recommends that employers treat appointments for fertility treatment in the same way as any other medical appointment or sickness. Sickness absence due to the side effects of fertility treatment should be treated in the same way as any other sick leave.
If an employee becomes pregnant through IVF, they have all the usual pregnancy and maternity rights and protections. If IVF is unsuccessful, employees are protected against pregnancy discrimination for two weeks after finding out an embryo transfer was unsuccessful.
A woman undergoing IVF may have a claim for indirect sex discrimination if she is subjected to a detriment for a reason connected to the treatment – for example, where an employer does not allow her to take unpaid leave.
A Private Member's Bill, the Fertility Treatment (Employment Rights) Bill, aimed at improving workplace protections for people undergoing fertility treatment, is currently making its way through Parliament. If brought into law, the Bill would give employees going through fertility treatment the legal right to paid time off to attend appointments. Their partners would also be entitled to take unpaid leave to accompany them.
The Bill would also mean that those undergoing fertility treatment would be protected from discrimination in a similar way to pregnant employees.
Whether these changes become law remains to be seen. The first reading of the Bill took place in the House of Commons on 20 June 2022. The second reading took place on 25 November 2022 but was interrupted. The second reading has been scheduled to take place on 24 November 2023, a day on which the House is not expected to sit, so it appears this Bill may not progress at this time. However, the fact that proposals have been made to give employees more protection when they are going through fertility treatment raises the profile of this issue and shows that this is an area where we may see more focus in future.
Some countries have already introduced specific legal protections for those going through fertility treatment. For example, Malta allows women undergoing IVF up to 60 hours of paid leave, and 40 hours of paid leave for their partner.
Despite the lack of specific legal protection for people undergoing fertility treatment, some employers are taking action to support their employees by introducing their own policies. This could include provisions to allow employees to take time off to attend appointments for fertility treatment or accompany their partner.
Many employees are reluctant to talk to their employer about their fertility difficulties because they believe it may have an adverse impact on their career. Having a fertility policy can help to create a culture of openness in the workplace which may help break down the stigma surrounding infertility and increase employee engagement. 63% of surveyed employees reported reduced engagement at work whilst undergoing fertility treatment and 56% experienced decreased job satisfaction (Fertility Network).
Other steps employers could consider taking include:
Fertility treatment can be unpredictable and involve attending several appointments on short notice and with little flexibility to schedule appointments outside working hours. Taking a flexible approach can help employees balance work with their treatment:
A number of large employers such as Co-op, Natwest, Metro Bank, Zurich Insurance and Channel 4 have signed MP Nickie Aiken’s Fertility Workplace Pledge which aims to change attitudes towards fertility treatment and help support those going through it.
Some employers are offering benefits to help cover the cost of fertility treatment or paid time off for fertility treatment. For example, Natwest, Centrica, LinkedIn, Goldman Sachs, Blackrock, Facebook, Google and Apple all offer fertility benefit programmes. The NHS and the Co-op offer paid time off for fertility treatment, with the Co-op also offering access to free counselling and wellbeing support.
The benefits of introducing a fertility policy and taking steps to support employees through fertility treatment are not just for employees. They can help employers, as part of their wider diversity, equality and inclusion initiatives, to attract and retain the best talent and build a diverse and inclusive workplace. These steps may also help improve employee wellbeing and productivity.
If your organisation is considering introducing a fertility policy or other steps to support employees with fertility treatment, Clyde & Co can help you with its drafting and implementation.