Absence for IVF treatment – a delicate affair

I am the HR Manager of a large City organisation and I need your advice. One of our female employees, Ms Jones, is currently undergoing IVF treatment and consequently has to take a great deal of time off work to attend her appointments. It has now come to the stage where we are considering dismissing her due to the amount of time off she has taken for the purposes of her treatment and the likely future absences if she has to repeat the treatment. Before we do so, we would like to know whether she could potentially bring a discrimination claim if we dismiss her in such circumstances.

Yours truly,

Mr. Troubled

Dear Mr Troubled

I understand your concerns, and although the legal authority in this area is rather limited, by dismissing Ms Jones because of her absences due to the fact she is undergoing IVF treatment, it is quite possible that she could successfully bring a claim of discrimination against your company.

Sex Discrimination

The EAT, in London Borough of Greenwich v Robinson, took the view that, because men can undergo fertility treatment too, it was not automatically sex discrimination to select a woman for redundancy because she has been absent as the result of IVF treatment. An employer is therefore entitled to take such absences into account when comparing the woman’s absence levels to those of other employees.

However, dismissing on the basis of assumptions about attendance patterns or the potential results of the fertility treatment may amount to direct sex discrimination. The case of Joyce v Northern Microwave Distributors Ltd was quite exceptional due to the fact that the employer admitted that the claimant had been dismissed because she would be absent from work having fertility treatment and may also become pregnant. The Tribunal found that the assumptions which the employer had made about the fertility treatment and any subsequent pregnancy were stereotyped and constituted evidence of a discriminatory attitude, as a man would not have been treated in the same way.

Although both men and women undergo fertility treatment, women generally require more fertility treatment than men and are therefore more vulnerable to being disciplined for related absences. Consequently, a woman taking time off to undergo fertility treatment who is adversely affected by disciplinary rules regarding absences, may well claim indirect sex discrimination, thereby requiring her employer to justify the operation of such rules.

Disability Discrimination

There is not as yet, any legal authority concerning whether infertility constitutes a disability within the meaning of the Disability Discrimination Act 1995 (“DDA”). Nevertheless, it could potentially be argued that fertility problems requiring IVF treatment do qualify as a physical impairment having a long term effect. Questions arise however, surrounding whether those problems actually have a substantial adverse effect on the normal day to day activities that Ms Jones carries out as an employee – a requirement for a disability to be established under the DDA. A possibility could be that Ms Jones’ fertility treatment affects her ability to lift, carry or move everyday objects.

If Ms Jones’ fertility problems do constitute a disability within the meaning of the DDA, she is protected from discrimination in a number of ways:

1. The right not to be treated less favourably on the grounds of her disability – this would amount to direct discrimination for which there is no defence.
2. The right not to be treated less favourably for a disability-related reason – this usually arises on the grounds of a symptom or consequence of the disability, such as Ms Jones being treated less favourably for having to regularly take time-off to attend IVF appointments. This can potentially be justified on objective grounds.
3. Ms Jones’ right to request that you make reasonable adjustments if the physical features of the premises, or any provision, practice or criteria applied by you as her employer, places her at a substantial disadvantage in comparison with persons who are not disabled. This could arise if, for example, a particular shift pattern was introduced that Ms Jones could not comply with due to her IVF treatment schedule.

Summary

Although it is as yet unclear, if infertility did amount to a disability within the meaning of the DDA, any less favourable treatment received by Ms Jones due to her disability could lead to a claim for disability discrimination.

The position as to sex discrimination is clearer. Ms Jones could potentially succeed in a sex discrimination claim if she can show that:

1. a man undergoing fertility treatment is, or would be, given more favourable treatment in similar circumstances, or
2. she has been treated less favourably by her employer because she might become pregnant.

Practical steps to minimise liability

It is important to act on the facts of the situation rather than assumptions. Aiming to manage an irregular working pattern is far preferable, liability wise, to recommending that an individual take unpaid extended leave whilst they undergo the fertility treatment.

By consulting with the employee, it allows for the opportunity to properly assess the level of absence that is required when undergoing the IVF treatment. Decisions can then be made as to whether Ms Jones could take advantage of any flexible working policy that the company has in place and for adequate cover to be organised for her absences. Taking such steps ensures not only that an adequate assessment is made of the situation and decisions are taken that are more suited to both you as the employer and Ms Jones as the employee, but in doing so, you are also minimising the risk of being faced with a discrimination claim.