The EAT has confirmed that it amounts to sex discrimination to treat a woman at an advanced stage of IVF treatment less favourably simply because she is receiving that treatment (Sahota v The Home Office and Pipkin). Applying the ECJ's decision in Mayr, this automatic protection against discrimination, without the need to point to a male comparator, applies only in relation to the limited window between collection of the ova and immediate first implantation of the fertilised ova.
The EAT upheld the findings of the tribunal that, despite the background of IVF treatment, the acts complained of had not been taken because of Mrs Sahota's sex or the fact that she was undergoing IVF treatment. Her claims therefore failed. The EAT went on to discuss the circumstances in which treatment on the grounds of IVF treatment will amount to discrimination on the grounds of pregnancy or sex.
A woman undergoing IVF is considered to be pregnant at the time the embryo is implanted and from that time, the Sex Discrimination Act provides automatic protection from discrimination on the grounds of pregnancy. This continues until two weeks after the end of the pregnancy if the implantation eventually fails or until the end of maternity leave if it is successful. A dismissal will also be automatically unfair if it is related to a woman's pregnancy.
The EAT, however, was not prepared to extend the special protection from discrimination beyond the limited period between collection and first implementation of the fertilised ova and rejected Mrs Sahota's contention that IVF treatment as a whole should be equated to pregnancy. The EAT confirmed that infertility is a medical condition and, as a general rule, absences as a result of IVF treatment can be treated as sickness absence in the normal way. It is clear from established case law that when a worker is absent as a result of a gender-specific illness, even one attributable to pregnancy, less favourable treatment on account of that absence does not constitute sex discrimination if a male worker would have been treated in the same way.
This means that, other than in relation to the advanced stage of IVF treatment described by the ECJ, less favourable treatment on the grounds that an employee is undergoing IVF treatment (before she is considered to be pregnant) will only amount to discrimination if it can be shown that a man in the same circumstances would be treated more favourably, for example, in relation to time off, sick pay, promotion or allocation of duties.
Impact on employers
- 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.