It is a well established, and hopefully well known, principle of employment law that discrimination on the grounds of pregnancy is unlawful and constitutes less favourable treatment on the grounds of sex.

This principle is contained within S.3A of the Sex Discrimination Act 1975 which allows for protection from the time the employee becomes pregnant until the end of her entitlement to ordinary maternity leave, or where a pregnancy ends before the entitlement to ordinary maternity leave for a period up until 2 weeks from the end of the pregnancy.

However the European Court of Justice and the Employment Appeal Tribunal (EAT) have both had to recently consider issues arising from employees undergoing in vitro fertilisation (IVF) treatment.

In the case of Mayr v Backerei und Konditorei Gerhard Flockner OHG C-506/06 [2008] IRLR 387, the European Court of Justice (ECJ) required to consider a case of an employee, who was undergoing IVF treatment, having been dismissed by their employer.

The ECJ took the opportunity to restate the general principle that where male and female are equally exposed to illness then where a female employee is dismissed on the grounds of absence related to such illness, providing a male employee would have also been dismissed, then there can be no sex discrimination. It was also stated that dismissal on the grounds of pregnancy, which affected only women, would be direct sex discrimination.

In considering the nature and effect of IVF the ECJ stated that:

A woman should be regarded as “pregnant” when in vitro fertilised eggs are transferred into her uterus; and

When a woman is on sick leave in connection with an advanced stage of IVF treatment which in itself could only affect a woman, namely the implantation of fertilised eggs, then a dismissal based on that absence would be direct sex discrimination.

This decision was endorsed by the EAT in Sahota v Home Office and Pipkin UKEAT/0342/09. In effect meaning that a woman undergoing IVF treatment will receive protection against less favourable treatment from the point immediately before the implant and if successful will remain protected until the end of ordinary maternity leave entitlement.

If unsuccessful then she remains protected for a period of 2 weeks from confirmation being received.

It should be remembered however that there is no statutory right for an employee to take time off from work in respect of infertility investigations or treatment and as such time off for IVF medical appointments should be treated no differently from any other medical appointment.

Likewise should an employee become ill as a result of any such treatment then they should be entitled to any sickness benefits, whether contractual or statutory, that any other employee would be entitled to.

Employers are of course free to consider having a written policy prepared on the various issues that may arise as a result of an employee undertaking IVF treatment and may benefit from being clear on their position in these matters.

Any such policy would have to be considered very carefully and properly consider the concerns that employees may have in this regard and could address how the issues of time off or flexible working will be managed.

It is of course widely accepted that the undergoing of such treatment may represent a very difficult and sensitive time for an employee which may extend to their family, including their spouse or partner and employers must ensure that they deal with such situations in a considerate  and understanding manner.