What am I entitled to as an employee going through fertility treatment?

What am I entitled to as an employee going through fertility treatment?

Co-founder at Fertility Matters at Work & Helen Burgess, Partner at Gateley Legal.
Originally published at Fertility Road Magazine, ISSUE 55.

The word ‘entitlement’ carries so much weight in the world of work. When you are sick you want to know what you are ‘entitled’ to in terms of pay. When you have time off for a planned operation you need to know your entitlements on a supportive working plan when you come back to work. When you are pregnant you look to policies and terms and conditions for information on what you are ‘entitled’ to in terms of time and money.

For fertility treatment there is no such luxury and currently no ‘entitlement’. Research tells us very clearly that the majority of people who are going through fertility treatment are scared to tell their employer and so go through the experience in secret, often covering the truth with varying excuses that are tied to the entitlements that already exist so that in some way they can feel a sense of validation in what they are doing. I did this. I lied my way through two cycles of fertility treatment after checking within our work policies to see that there was nothing at all to even recognise that fertility treatment existed. That in itself felt incredibly isolating. With the absence of words on a page that could help me I also knew that there was no such ‘entitlement’ available, making me even more determined to be able to take time off and be paid, no matter how I had to manipulate the situation to make it happen.

The truth is this is ‘not me’. I am not out to ‘get’ what I can from any organisation. I have always been exceptionally loyal to the people I work for, am conscientious beyond belief and hate letting people down. This however, was different. I felt backed into a corner; my struggle was very real. I felt like wanting a baby and having this fertility treatment (my only option) wasn’t recognised or deemed important enough to attach support to in my workplace. This feeling, I have since learned, is all too common and I was never alone in how I felt. Despite an array of legislative changes over the years to support more ‘family friendly’ topics we are still not seeing enough changes in the time in people’s lives ‘before a family’. There is a distinctly hidden space where people who are trying to get pregnant don’t even get an ounce of recognition.

At Fertility Matters at Work, we are contacted frequently by people via our social media platforms outlining their career conundrums and the huge impact that fertility treatment has had and is having on their work; solicitors, doctors, teachers, engineers, finance experts; the list is endless. There is a real ignorance around what small changes could be made and ought to be made to enable these people to have an all-round better experience in the world of work.

When people feel backed into a corner, they formally complain via the grievance procedure which takes time and has a mental health toll on all of those involved and is often indicative of a poor culture which then causes even more challenges. They call in sick, or worse, they just decide to leave. Some of the quotes below are just a glimpse of the messages we receive at Fertility Matters at Work from people and serve to highlight the need for more robust legislation around fertility treatment.

“The culture at my work is one of fear, almost bullying so they (employees) feel reluctant to speak out. I spoke out with HR and my management as I thought it was the right thing to do for not just me. I am having to battle the grievance case which I could do without, but it’s not in my nature to give up. Alongside this they have declined my request to work part time (literally asking them to do three hours less a week) so all in all a really bad, unsupportive employer.”

“I work(ed) as a Specialist Pharmacist in an NHS hospital; I told my line manager about our treatment and when I called her I’d also prepared myself to hand in my notice.”

“My counsellor has said when doing IVF you can get signed off work..I’m seriously considering doing this for our next round.”

“I handed in my notice. I’ve not been working for a few months now and don’t regret it (the decision to quit) as I had totally underestimated how stressed and anxious I was feeling in my job.”

Helen Burgess, an employment lawyer, explains how, from a legal perspective, there is very little that exists at the moment.

Legally there’s nothing an employer has to give to or do for an employee who’s going through fertility treatment.

There is a potential argument that because the female has to undergo most of the fertility treatment procedures, she could bring a claim for indirect sex discrimination if her employer refused her time off to attend for those appointments. However, that argument hasn’t been tested. There is actually also no legal entitlement to attend medical or dental appointments during working hours but most employers allow this and some more progressive employers have extended this to cover fertility treatment appointments as well – but they don’t have to by law.

Once an employee is pregnant the usual rights and protections kick in – time off to attend antenatal appointments, not to be discriminated against because they’re pregnant, their role has to be risk assessed, etc. – but when is an employee going through fertility treatment considered to be pregnant? The cases of Mayr* and Sahota* are helpful and the following points can be elicited:

  • An employee is ‘pregnant’ at the point of embryo transfer
  • If implantation is unsuccessful and the pregnancy ends, she continues to be protected under pregnancy discrimination legislation for a further two weeks following the end of the pregnancy
  • The female employee is also protected from sex discrimination if her employer does anything unfavourable to her as a result of her having fertility treatment. This protection is limited to the time it takes for the ova to be collected, fertilised and the embryos transferred to her uterus. However, she will only be protected if the transfer is imminent and not if the embryos are frozen with a view to implanting them at a later date

The employer of course has to know that the employee is undergoing fertility treatment or is pregnant for the protection/s to bite. We know what the impact of a lack of legislation feels like and we know that recognising fertility treatment as a valid reason to attend appointments is highly likely to have a positive affect/effect on how psychologically safe people feel at work around disclosing treatment to their employer. At Fertility Matters at Work, we have recently joined forces with Nickie Aiken, MP for Westminster, who is supporting us in taking our request for statutory entitlements to Parliament via a Private Member’s Bill. We are starting with an ask for statutory time off for people who have to attend appointments for the assisted reproductive treatment that will enable them to create their family. We recognise organisations need to balance their business and the associated costs, but it doesn’t necessarily have to be paid; just recognised and allowed, just like time off for family and dependents is.

Some organisations already stipulate time off for appointments in their policies but they are few and far between. A change in law is the next step to either identify infertility as a ‘protected characteristic’ and be recognised under the Equality Act as a disability which will bring more protection against discrimination. The US already recognise infertility as a disability under the ADA (Americans with Disabilities Act) which is more in line with the WHO (World Health Organisation) definition of infertility which notes that it is a disability and a ‘disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse.’ The WHO is reportedly reviewing this definition of infertility to recognise that everyone has the ‘right to reproduce’, signalling the changes that are needed to support those who are unable to conceive naturally. Whatever happens in the future, the amount of people using assisted reproduction treatment is only set to increase. With it, we are hopeful that employees will commonly see more entitlements start to emerge as organisations realise the extent to which people within their organisations are needing time off and support. It’s a huge goal of ours at Fertility Matters at Work, to ensure that those going through fertility treatment in the future don’t have to hide appointments and sneak around at work, but they can attend these appointments safe in the knowledge that they have the right to do so. How wonderful would that be?!

*Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG C-506/06 (ECJ); [2008] IRLR 387

Sahota v Home Office and Pipkin [2009] UKEAT/0342/09

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Picture of Claire Ingle
Claire Ingle
Claire Ingle has worked in the field of HR at both an Operational and Strategic level for nearly 25 years across private, public and third sector organisations. She has a special interest in employee engagement and well-being and puts people at the heart of everything she does. Claire had her daughter after three rounds of IVF treatment and is all too aware of the lack of narrative around this topic, especially in the workplace. Claire first wrote about her experience in late 2018 (the year she had her daughter) in a HR publication hoping her story would inspire others to ask for help and support after her own experience wasn’t particularly positive. This article led to Claire meeting Natalie Silverman and Becky Kearns, both ex-infertility patients who also had the workplace agenda on their radars. Together, they formed ‘Fertility Matters at Work’, a company created to increase awareness for employers around fertility treatment through different mediums including a membership site and a unique e-learning package. The overarching aim of the organisation is that no one has a negative experience whilst navigating treatment and their career. www.fertilitymattersatwork.com
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