Supporting Fertility Matters In The Workplace

Supporting Fertility Matters

Despite increasing awareness around fertility issues, when it comes to the workplace there is no specific legal protection for people or partners facing challenges, experiencing heartache, or going through treatment.

Below, we have set out how employers can support employees undergoing fertility treatment or facing fertility issues.

According to the NHS, around one in seven couples may have difficulty conceiving with many choosing to try fertility treatment such as in vitro fertilisation (IVF), which has resulted in hundreds of thousands of successful births over the last decade. In the most recent figures, nearly 80,000 rounds of IVF were completed in 2021, and the numbers continue to increase year on year.

With statistics as high as this, it is likely most employers will have one or multiple people in their workforce who are contemplating or undergoing treatment or whose partner is.

Being aware of the challenges around fertility and treatment is the first step for any employer in understanding how best to support an employee. Thankfully, there has been great progress in the discussion around the topic, and removing the stigma attached to infertility, fertility treatment, miscarriage, and baby loss.

Understanding the law

There are currently no employment laws to support employees undergoing fertility treatment or facing fertility issues. However, that’s not to say there aren’t other relevant areas of legislation that may come into play for employers.

Constructive dismissal claims can arise when an employer has allegedly acted in breach of the duty of mutual trust and confidence which is implied in all employment contracts. This could come from a lack of support, understanding, or sympathy for employees experiencing fertility issues. Although claims will not always succeed, employers should understand how breaches can arise in order to minimise their exposure to risk.

Employers should also be aware of potential claims for unlawful discrimination. It is typically women or people born as women that will be dealing with the physical impact of fertility treatment such as having tests and medication, so they may feel they are being treated differently or unfairly, because of their situation and gender. In addition, it could be that infertility issues arise because of some other health problem meaning that disability protection is triggered.

A private members bill was introduced in 2022 which sought to introduce specific support for employees undergoing fertility treatment. However, it only made it to a second reading before it was prorogued.

It aimed to give individuals and couples the right to take time off to attend fertility clinic appointments, just as they are entitled to for antenatal appointments. Under the proposed legislation, employers would also have been required to have a workplace fertility policy, which would include guidance on things like time off work for treatment and miscarriage, flexible working, and access to HR support and counselling.

While the bill was ultimately unsuccessful, it is clear there is an appetite, and it could well be revisited in the future. Obviously, employers don’t have to wait for legislation and can formulate policies now or grant leave as they wish as part of offering support to affected employees.

Protection

While most people will be aware of pregnancy rights in the workplace, particularly pregnancy-related discrimination, it’s important to understand how this applies to people going through fertility treatment too. The minute an embryo is reintroduced to a person’s body, they will be classed as pregnant. They will then be protected from this moment until the pregnancy ends or until two weeks after a failed IVF cycle- this is known as the ‘protected period’.

Employers need to be mindful of this if a member of staff explains they are going through IVF, but also be sensitive to the fact that this is a personal and private matter. It can be difficult to bring up the topic of when an embryo has been reintroduced, or when a cycle has been unsuccessful, to find out how the protection alters. It is advised to be as supportive as possible throughout the process.

Advice to employers

One of the main challenges of fertility matters in the workplace is employees and managers being able to talk about it. However, without open discussion, it can be hard for employers to know their employees’ circumstances and to offer their support.

Fostering a culture that allows for these conversations is therefore incredibly important and is why awareness of the issues and the potential challenges is essential for employers. How people are impacted in terms of physical health and mental health, as well as considering their requirements for flexibility and support with workload are all essential factors to consider. Having this open environment could also enhance workplace reputation and staff loyalty.

If someone is going through fertility treatment it is also worth considering that they may have already tried unsuccessfully to have a baby, and experienced loss, sadness, and grief.

Fertility treatment is an incredibly tough and invasive process with mixed results as well as being emotionally demanding and draining. Employers should look to help employees however they can, even just by being open to talk or taking some additional stresses off their minds.

How can Nelsons helpSupporting Fertility Matters

Laura Kearsley is a Partner in our expert Employment Law team. Laura has a strong reputation in all aspects of employment law, including Employment Tribunal litigation, discipline and grievance issues, and unfair and constructive unfair dismissal claims, and has particular experience in developing HR support services for businesses.

If you would like any advice concerning the subjects discussed in this article, please contact Laura or another member of the team in DerbyLeicester or Nottingham on 0800 024 1976 or via our online form.

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