By Manna Mostaghim
Fertility leave — employer-sanctioned time off for fertility treatment appointments — is becoming a feature of modern employment relationships in the UK. Some public and private sector employers in the UK have fertility leave policies within their organizations; however, currently there is no “statutory right to time off for fertility appointments” in UK law. As of March 20th, 2023, a private members’ bill (the Fertility Treatment (Employment Rights) Bill) has had its second reading in the House of Commons to codify the right for employers to be required to “allow employees to take time off from work for appointments for fertility treatment.” But, as it stands, employees in the UK still require the beneficent support of their employers to receive support and fertility leave in their workplaces.
The need for Fertility Leave
The need for fertility leave has become ever more pressing for UK-based employees. Nine to fifteen percent of couples and one in seven individuals in the UK report fertility struggles. Meanwhile, assisted reproductive technology (ART) may be the only method for LGBTQI+ people to have children that are biologically related. But UK workplaces generally do not cater to this reality for their employees.
Individuals struggling with infertility and undergoing fertility treatments have reported significant workplace tensions. In a survey for Fertility Network UK, 84% of respondents stated that fertility struggles “affected their work.” The impact is disproportionately experienced by women, who undergo the more arduous and demanding aspects of infertility treatments — even if fertility treatment is required because of a “male factor issue.” Respondents to the Fertility Network UK survey also reported that they felt fertility treatments “affected their career prospects” (58%) and over a third of respondents went further to say that it did “actually” affect their careers (36%). There is speculation that workplace support for persons that experience fertility struggles could mitigate the harms to employees and their careers in the UK, especially for women; but only if adequate workplaces measures are taken.
Currently, workplace support for fertility treatments is either invisible, or inadequate at protecting the rights of employees with fertility struggles. For example, a study reported that “74.2% of respondents felt that the topic of fertility was not recognised and valued in their organisation.” The same study also cited that 42.1% of employed people “had no idea where to turn” in their organization for support in relation to their fertility treatments. Additionally, another study found that 24% of persons reported that they experienced “unfair treatment” after disclosing that they were undergoing fertility treatments. A lack of codification of the rights of employees with fertility struggles has therefore led to evidence of isolation, confusion, and discrimination for persons in UK workplaces.
The current rights and legal status of employees seeking IVF
A codified right to fertility leave does not exist in the UK. Employees must instead rely on ad hoc measures to navigate fertility treatment by using sick leave, managerial discretion, or employer initiatives in their workplaces. This amounts to inconsistent protections for employees seeking fertility leave or support.
Pregnant then Screwed is a UK organization that seeks to “end the motherhood penalty” by advocacy and research by collecting data on the experiences of persons that are pregnant or seeking to get pregnant. A respondent to a recent Pregnant then Screwed report cited that after her fertility treatment, her former workplace “put an amendment in their contracts saying they will not allow time off — paid or unpaid — for any fertility treatment.” Legislation does not, currently, adequately contend with workplaces that may be hostile to employees accessing leave for fertility treatments. Many employees therefore may be required to use statutory sick leave or other measures to navigate time off from work for fertility treatments.
There are limited circumstances for legal protections for people seeking leave for fertility treatment in the UK. For example, Tommy’s, a charity committed to preventing baby loss and improving pregnancy safety, claims that a person undergoing an embryo implantation via IVF is immediately entitled to the rights of pregnant people, even if “you may not be confirmed as pregnant until some weeks later.” But, to activate the rights of pregnant people, Tommy’s states an employee is required to tell the employer that they are undergoing the embryo implantation.
The right to leave, or workplace protections for pregnant people, for embryo implantation is not codified in UK law. The ability to access leave in the UK for embryo implantation is instead derived from a 2008 judgement by the European Court of Justice (ECJ). According to the judgement, embryo implantation is a “state [that] affects only women and therefore constitutes direct discrimination on the grounds of sex.” This right is therefore situated in anti-discrimination law rather than legislation that specifically portends to fertility. Further, the activation of the rights of pregnant people based on a decision of EU law may have less relevance in the UK in a post-Brexit landscape.
Beyond the absence of legal rights, employees may be hesitant for other reasons to apply or advocate for fertility leave within workplaces. This hesitancy can be due to a lack of institutional support from workplaces, such as a lack of information about what kind of support an employee will receive from their workplace when undergoing fertility treatment. But it also can be attributed to the uncertain nature of fertility treatment, as fertility treatments are often unsuccessful. Employees do not want to be side-lined in their career trajectory over the prospect that they may become pregnant and may become a parent. A lack of legal protections for people therefore positions employees to remain silent about their health requirements in the workplace based on the uncertainty of success in fertility treatments and workplace protections.
The Fertility Treatment (Employment Rights) Bill
The Fertility Treatment (Employment Rights) Bill (“the Bill”) was introduced to parliament in 2022. In its current form (as of the 20 March 2023), it seeks to protect both employees and agency workers, by ensuring their right to:
- Receive time off for fertility treatment, if they are so referred to it by a “medical practitioner or registered nurse”;
- Remuneration for time taken off, while they receive fertility treatment;
- Complain to an employment tribunal, if they are “unreasonably refused” permission to take time off or are not remunerated for time taken off for fertility treatment.
The provisions in this Bill also extend to providing rights to employees who seek to accompany a person with whom they have a “qualifying relationship” to attend appointments for the fertility treatment of their partner. However, this time off would be unpaid.
The statutory provisions proposed in the Bill are also accompanied by a Fertility Workplace Pledge (“Pledge”). This Pledge articulates the need for greater flexibility, managerial understanding, and discourse in workplaces around fertility struggles. This Pledge seeks to imbue workplaces with a greater sensitivity to fertility struggles. For Claire Ingle, co-founder of Fertility Matters Matters at Work, steps like this ensure that businesses that are unable to provide remuneration for time off are encouraged to provide “flexible working” conditions for people with fertility struggles. However, this Pledge is an entirely voluntary and non-enforceable initiative that has only been instituted at a handful of organizations across the UK.
Currently, the rights of employed people that seek fertility treatments in the UK are subject to employer discretion and workplace culture. This places undue pressure on employees with fertility struggles to navigate arduous healthcare procedures with uncertain workplace protections. Codifying the right to fertility leave may a significant step to relieve some pressures on a growing population of people in the UK with fertility struggles.
Manna Mostaghim is a PhD Candidate at The London School of Economics and Political Science.
