Many people struggle with fertility issues. The NHS estimates that 1 in 7 couples in the UK are faced with infertility problems. Infertility, and associated treatments, can have a significant impact on a person’s mental health: they may experience depression, anxiety and feelings of hopelessness, guilt and frustration. Affected individuals may also withdraw socially, and can experience both financial and relationship/marital problems. This can have a profound effect upon their daily lives. Research from a recent survey conducted by Fertility Network UK, looked at the mental health impact of fertility treatment on workplace performance and job satisfaction. It found that 38% of those interviewed considered leaving their job, 36% had to take increased sick leave, 19% reduced working their hours, and two-thirds felt less engaged with their work.

What rights do employees have?

Currently there is no statutory right to paid or unpaid time off for employees undergoing fertility treatment. However, absence for fertility appointments must be treated the same as any other medical appointment. As there is no statutory right, you may require employees to take annual leave for fertility treatment. Employees cannot take sickness absence and will not qualify for SSP as they are not sick. However, in practice employees may call in sick to get the time off for their appointments. Of course, if an employee becomes unwell as a result of undergoing fertility treatment they can take sickness absence, but they must comply with your sickness absence reporting requirements.

An employee must legally be treated as if they are pregnant if they inform you that they have reached embryo transfer stage of their treatment. This means that the employee will have the same rights as a pregnant person, including the same leave, pay, and protection from discrimination.

Case law also suggests that employees should be given time off during the latter stages of fertility treatment and must not be treated less favourably because of this. It has been suggested that a woman undergoing fertility treatment is deemed to be pregnant when her eggs are harvested and fertilised just prior to the embryo being transferred to her uterus. Protection against pregnancy and maternity discrimination under the Equality Act 2010 therefore begins shortly before the embryo is placed into the woman’s womb, which is typically a few days before. Therefore once the protected period begins, employees should be treated the same as a pregnant employee would be.

Despite the fact that individuals who undergo fertility treatment are not protected under the Equality Act 2010 until they become pregnant, individuals might be successful in bringing a sex discrimination claim. If a woman is disadvantaged as a result of undergoing fertility treatment, but not yet pregnant, she may bring a sex discrimination claim if she was treated less favourably than her male counterpart, or than her male counterpart would have been treated.

Although employees who are undergoing fertility treatment are not entitled to the same rights as a pregnant person would be until they themselves become pregnant, you should still take a sympathetic and understanding approach and offer leave where possible.

What support can employers offer

Research has shown that most people experiencing fertility problems are reluctant to speak to their employer about it because they fear it may have a detrimental effect on their career.

The Equality and Human Rights Commission Employment Statutory Code of Practice suggests that employers should treat requests for time off for fertility treatment ‘sympathetically’. The Code suggests that you  should allow women to ‘take annual leave or unpaid leave when receiving treatment’ and you should ‘[designate] a member of staff whom employees can inform on a confidential basis that they are undergoing treatment’.

ACAS guidance suggests that employers should be understanding and supportive towards employees undergoing treatment. You can do this by granting time off for medical appointments. A supportive attitude also means employees will be more likely to be open with you about how their treatment, and any problems they're having, could affect their wellbeing or work.

Implementing a fertility treatment policy may be beneficial for you. Having a policy in place displays an understanding of infertility issues and treatments available. Employees may be more willing to speak to you if they feel understood. A policy may also maintain employees’ expectations of the support available and removes any uncertainty. You must be careful when implementing a fertility treatment policy to not assume that it applies only to employees in a heterosexual relationship, or even employees who are in a relationship at all.

You may also benefit from Fertility Awareness Training Courses, enabling your management staff to become more educated on the issues that employees may face.

It is beneficial for employers to be flexible. Offering time off for appointments and treatment may reduce disruption to day-to-day work by decreasing the number of unplanned absences and lessening the strain on mental health . Many employers that have already implemented a flexible workplace have seen a happier workforce with improved productivity.  This may also have a positive impact in the long term with employee retention.

There are several ways in which employers can approach fertility issues and treatment in a positive way. If you have questions about supporting employees through fertility treatment contact our Employment Team by emailing employment@warnegoodman.co.uk or by calling 023 8071 7717.