In Sahota v Home Office, the EAT has confirmed that female employees undergoing IVF treatment are ‘protected’ under the Sex Discrimination Act in a similar way to pregnant employees shortly before, during and for 14 days after an implantation. However, female employees are not protected for an indefinite period once an ova is frozen with a view to implantation at a later date.

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 by her employers. 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 dismissed the appeal. It held that less favourable treatment of employees who are undergoing IVF treatment but who are not pregnant, either because treatment has begun but ova have not yet been implanted or because an implantation has failed but further implantation is contemplated, is not automatically directly discriminatory. The EAT endorsed a decision in the European Court of Justice that such protection is afforded only in a limited period; the time between ova being collected and the “imminent” implantation of the fertilised ova.

Sahota v Home Office