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IVF treatment and sex discrimination- 01/03/2010
In the recent case of Sahota v The Home Office and Pipkin Mrs Sahota worked for the Border and Immigration Agency and was undergoing IVF treatment. She claimed that as a result of that treatment she was subjected to various detriments both by her employers in general and her line manager Mr Pipkin in particular. Her claims were dismissed by an Employment Tribunal on the basis that the acts Mrs Sahota complained of were not done because she was undergoing IVF treatment. Mrs Sahota appealed.
The EAT confirmed that discrimination against a female employee because of her pregnancy is direct sex discrimination. No comparison with a male employee who, for example is absent due to sickness, is required to establish less favourable treatment. The Sex Discrimination Act 1975 enshrines this principle into UK law by expressly providing that less favourable treatment by an employer of a female employee during the 'protected period' is automatic sex discrimination. The 'protected period' starts when the female employee becomes pregnant and continues until the end of her maternity leave.
For female employees undergoing IVF treatment, the EAT confirmed that they are regarded as being pregnant once the fertilised ova are implanted. In cases where an implantation fails, the 'protected period' continues for a further two weeks.
In this case, the EAT considered the position of female employees undergoing IVF treatment where the ova has been collected and fertilised, but not yet implanted. The EAT held that female employees are also protected in the short period (typically a few days) between the collection of the ova and the first implantation attempt into the uterus.
However the EAT ruled that this did not mean that female employees were protected in all cases as soon as the ova is fertilised. In particular in circumstances where the fertilised ova are frozen for implantation in the future, as fertilised ova can be kept for many years. This would mean there would be no definite point at which it could be said the pregnancy had come to an end, which would be inconsistent with the principle of legal certainty.
Therefore female employees undergoing IVF treatment are only protected under the Sex Discrimination Act before the ova is implanted, when they are at the "important stage" between "the follicular puncture (collection of the ova) and the immediate transfer of the in vitro fertilised ova".
The EAT then went on to dismiss the appeal and uphold the Employment Tribunal's decision on the facts of this particular case. In the EAT's view the case was a "good illustration" that although an act may occur in the context of, or in connection with, (in this case) IVF treatment, it does not necessarily mean that the act was done on the grounds of say, that IVF treatment.
Infertility is estimated to affect one in six or one in seven couples and many employers are therefore likely at some stage to have to deal with issues arising from it.
The effect of this decision is that, for the limited period between egg collection and implantation, a woman has special protection and will not need a male comparator to bring a discrimination claim.
Infertility treatment can give rise to a number of issues for employers and they should exercise caution when dealing with any employee undergoing IVF or other forms of fertility treatment.
Although the EAT did not extend the protected period to cover the whole of IVF treatment, a woman undergoing treatment may still be able to claim that she has suffered discrimination if she believes she has been less favourably treated than a man in similar circumstances, for example by being refused time of for treatment.
In order to ensure fair, non-discriminatory and consistent treatment, employers should consider implementing a written policy on leave for infertility treatment.