Sahota v Home Office and Pipkin – Employment Appeal Tribunal ("EAT")
Discrimination on the grounds of pregnancy is direct sex discrimination with no accompanying need for the victim to point to a male comparator. European law has established that women who are undergoing IVF treatment but who are not yet pregnant are not automatically protected under the Pregnant Workers' Directive. However, the dismissal of a female worker who is at an advanced stage of IVF treatment (but not pregnant) is prohibited where the dismissal is based on the fact that she was undergoing that treatment.
Facts of the case
Ms Sahota underwent two rounds of IVF over a period of approximately three months. Both procedures were unsuccessful. She alleged that her employer committed several acts that amounted to direct sex discrimination during this three month period, including suspending her for taking too much time off work. The Employment Tribunal dismissed her claims and Ms Sahota appealed.
The EAT's judgment
The EAT dismissed the Claimant's appeal and upheld the Tribunal's findings that the acts complained of had not been done on grounds of the Claimant's sex or the fact that she was undertaking IVF treatment.
The EAT also gave guidance on whether protection from discrimination on the grounds of sex, without the need for a male comparator, extended beyond pregnant employees to those undergoing IVF treatment. On this point, the EAT held that where a worker is absent as a result of a gender-specific illness, even one attributable to pregnancy or childbirth, less favourable treatment on account of that absence does not constitute sex discrimination (although specific additional protections will apply if the illness is during maternity leave or the 'protected period'). The only question to ask is whether a woman dismissed on account of absence due to illness has been treated in the same way that a man would have in the same circumstances.
In the case of women receiving IVF treatment, the EAT confirmed the earlier decision of the European Court of Justice that a woman is to be regarded as being pregnant, and the protected period starts, when fertilised ova are implanted. In circumstances where implantation takes place but fails, the protected period ends after a further two weeks have elapsed.
In addition, the EAT endorsed the further, limited, period of protection for women undergoing IVF treatment but who are not yet pregnant, namely the period when ova are collected and fertilised for immediate implantation. During this period, the dismissal of an employee on the ground that she is receiving IVF treatment may constitute sex discrimination.