Supporting women in the workplace through IVF/assisted conception and/or menopause continues to be an area of increasing focus. Those employers who fail to recognise and treat these with appropriate sensitivity may face, at best, criticism and at worst, a possible right of action.
As matters stand, those undergoing IVF or experiencing menopause do not have any specific statutory rights. Whilst there have been and continue to be calls for legislative reform in these areas, nothing has yet been set in stone. In the meantime, and given that IVF and menopause-related employment tribunal claims have increased significantly in the last couple of years, it is more important than ever for employers to keep under review how they can better support their staff going through these events. We have explored this further below.
IVF – the current position
IVF is an extremely invasive procedure requiring frequent medical appointments. It is both physically and mentally challenging, which can have a profound effect on the woman undergoing it.
Under current UK law, pregnancy rights for employees undergoing IVF only begin at the last stage of the IVF process i.e. when the fertilised egg is transferred to the woman’s uterus. However, the process itself begins several steps before that, including hormone treatment, blood tests and scans, which may also cause the woman to suffer side effects. A woman is not entitled to time off for antenatal appointments for this, as she is not yet pregnant. There is also no legal requirement to treat IVF appointments as medical appointments or sicknesses. Historically, many workplaces have not offered women undergoing IVF any time off, which has meant that those employees have had to use their holiday entitlement.
For the moment, the Equality and Human Rights Commission (EHRC) code recommends that employers treat requests for time off for IVF treatment “sympathetically” and that employers may wish to establish written policies and procedures for allowing such time off, including allowing women to take annual leave or unpaid leave. Going forward, the government is considering proposals for women to actually be granted a right to time off to attend medical appointments in the early stages of IVF.
Menopause – the current position
Five years ago it was recognised by a governmental report that increased rates of employment among women over 50 meant that more women than ever before will experience menopause transition during their working lives. Employers must therefore be aware of the potential impact of menopause on their staff.
The symptoms of menopause can be both physical (e.g. hot flushes, heavy periods and headaches) and psychological (e.g. memory loss, confusion and depression). These symptoms vary in severity but can significantly impact a person’s ability to perform as normal in the workplace.
As with IVF, introducing a menopause policy, whilst highly recommended, is not mandatory. In the absence of any hard and fast rule, employers are actively encouraged to do their best to raise awareness of menopause within the workplace and promote an open dialogue on the subject. ACAS has produced helpful guidance on how best to handle menopause-related issues in the workplace.
Common issues
- Discrimination – under the Equality Act 2010 it is unlawful to discriminate against any person on the basis of a protected characteristic (whether directly or indirectly). For the purposes of this article, the most relevant protected characteristics would likely be age, gender and pregnancy/maternity. While there may be no specific protections in relation to assisted conception treatment or menopause, case law has demonstrated and continues to demonstrate how individuals may be protected under discrimination (and unfair dismissal) law. Employers must be mindful of these risks.
- Performance management – when dealing with performance issues, employers should carefully consider the cause and therefore whether formal action is required in the circumstances i.e. a performance improvement plan, or whether matters can be dealt with informally and in a more supportive way without risking exacerbating matters. Employers should ensure a consistent approach across the workforce and avoid treating particular staff less favourably, failing which allegations of unfair treatment and/or discrimination could result.
- Sickness absence – employees going through IVF (especially repeated cycles) or menopause may experience persistent short or long-term absence as a result of physical and/or mental symptoms. Employers should therefore be careful when commencing any absence management process and consider the extent to which that employee may be unfairly disadvantaged as a result. Whilst employers are entitled to take reasonable steps to investigate the cause and longevity of absence, they must be careful about putting pressure on employees or threatening any sanctions as a result of such absence.
Practical steps for employers
- Policies and procedures – it is key for employers to implement clear and concise written policies and procedures (usually contained in the staff handbook). These should ideally include those dealing with IVF (and assisted conception) treatment, menopause and mental health and well-being. Those policies should make it clear, for example, whether employees are permitted leave to attend IVF appointments etc. Additional and related policies should include equal opportunities, sickness absence, performance/capability and flexible working. In addition, as information about an individual’s health amounts to special category data there should be a suitable policy dealing with data protection.
- Education and training – this is important to promote awareness amongst staff and create an inclusive and supportive working environment. This should be particularly focussed on management so that they are informed and equipped on how to deal with such situations.
- Workplace adjustments and risk assessments – consider whether any measures can be implemented to better support employees through such a period and which, in turn, may assist with productivity and/or better ensure their health and safety in the workplace.
- Flexible working – employees may wish to (and are legally entitled to) submit a flexible working request for an adjustment to a working pattern. Whilst employers are not obligated to grant such a request, they do have to follow a set process and timescales in giving the request due consideration and, if rejecting it, do so with reference to specific business grounds. As above, a flexible working policy should be in place setting this out.
- Support – employers may wish to put in place an employee assistance programme for their staff to access. Such programmes often include advice and guidance as well as telephone counselling. Employers may also want to introduce support groups in an effort to encourage open conversations about how the workplace can be improved e.g. women in menopause might benefit from small adjustments like a change of seating to a cooler part of the office to help manage hot flushes.
- Seek legal advice – should you have any queries or concerns regarding a particular situation we always recommend seeking tailored legal advice.
If you require any advice or assistance in relation to the above please contact our Head of Employment, Louise Rogers at Louise@prosperitylaw.com or on 07841 644068.
