Under the Sex Discrimination Act 1975, employers may not discriminate against employees on the grounds of pregnancy. And the Employment Rights Act 1996 makes it automatically unfair to dismiss a woman for a reason connected to her pregnancy.
Recently, the Employment Appeals Tribunal considered the case of immigration officer Parminder Sahota, a woman trying to become pregnant.
Ms. Sahota began a course of IVF treatment in 2007 and claimed unlawful sex discrimination on the ground that her employer subjected her to various detriments and harassment because of that treatment.
Between 2007 and 2008, Ms. Sahota underwent two unsuccessful IVF plantations. Her employer accepted that immediately following each implantation Ms. Sahota was to be regarded as having been pregnant.
The key issue, however, was whether IVF treatment should be treated as equivalent to pregnancy. Specifically, whether protection against sex discrimination extends to employees undergoing IVF treatment who are not pregnant, either because treatment has begun but ovum has not yet been implanted or because an implantation has failed but further implantation is contemplated.
Ms. Sahota argued that it was wrong to treat the position of a female employee undergoing such treatment as comparable with that of a man undergoing medical treatment, and that to subject a female employee to a detriment on the grounds that she is undergoing such treatment constitutes unlawful sex discrimination.
The Employment Appeals Tribunal rejected this argument, however, ruling that infertility is a medical condition and IVF is a form of medical treatment. Any absence as a result of IVF treatment should, therefore, be treated as standard sickness absence.
A “limited, and closely defined, exception” to this was the “important” stage “between the follicular puncture and the immediate transfer of the in vitro fertilised ova into the uterus.”
In light of this decision, a woman undergoing IVF treatment will only receive protection relating to pregnancy if she is indeed pregnant or at an “advanced stage” of treatment – that is between follicular puncture and the immediate transfer of the fertilised ova into the uterus.
Pregnancy protection does not extend therefore to the entire duration of IVF treatment.
** Additional Information & Advice **
Depending on your circumstances, however, you may want to speak with a solicitor who specialises in employment law. You can be matched with a solicitor in your area for free via solicitor matching services, which can also help you to understand the best course of action for your situation and whether you are ready to hire a solicitor.
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