The Employment Appeal Tribunal (EAT) has confirmed that, subject to a limited exception, adverse treatment of women because they are undergoing IVF treatment is not automatically sex discrimination. Although only women can undergo this kind of fertility treatment, the EAT ruled that in principle it is no different from any other gender-specific medical treatment up to the point at which the woman becomes pregnant. That means that a woman undergoing the early stages of IVF treatment, will normally need to establish less favourable treatment than a male comparator in order to bring a sex discrimination claim, unlike a pregnant woman, where no comparator is required.
This is the first case from the UK to apply an Austrian decision of the ECJ two years ago, which ruled that a worker undergoing IVF treatment would not be entitled to the same protection as a pregnant worker, until the point at which a fertilised ovum had been implanted in her uterus. However there is an exception, covering the limited period in the treatment process between collecting the ova and implanting them, provided that implantation was due to happen "imminently".
Although this decision is helpful to employers, dealing with employees undergoing IVF treatment requires considerable sensitivity. Few employers would want to rest their defence on the precise point in the treatment cycle at which the alleged discrimination occurred.