The Employment Appeal Tribunal (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.
This decision by the EAT essentially confirms the position taken by the European Court of Justice on this issue. It therefore serves as a useful reminder to employers that less favourable treatment of female employees undergoing IVF treatment can, in certain circumstances, constitute direct sex discrimination.
In practise this means that female employees undergoing IVF treatment who are disciplined, dismissed or suffer a detriment for absences from work as a result of that treatment, may have a claim for sex discrimination in the same way as a pregnant employee disciplined, dismissed or subjected to a detriment for absences related to her pregnancy.
In the case of Sahota v Home Office and Pipkin the EAT confirmed the position taken by the European Court of Justice (ECJ) in the case of Mayr v Bäckerei und Konditorei Gerhard Flöckner OGH C-506/06 (2008) regarding the protection granted to female employees undergoing IVF treatment.
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 (Section 3A (3) Sex Discrimination Act 1975).
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.
Applying the ECJ decision of Mayr v Bäckerei und Konditorei Gerhard Flöckner 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. This was referred to in the Mayr case as the "advanced stage" of IVF treatment.
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.