Is it time to adopt a fertility policy?

The way that we work is constantly evolving, adapting to new technology, cultural trends and business demands. However, the way that we live is also changing, our life choices, opportunity for further education and progression at work. The number of children that women have and the age that women start a family has increased since the 1950s and the average age in the UK is now 31. The pressure of the “biological clock” intensifies as women get older and towards the end of their natural fertile years; many will look for medical assistance to conceive. An increasing number of same-sex couples are also deciding to start families and many will also choose to do this by making use of fertility treatment.

According to the Fertility Network UK, it is estimated that 3.5 million people in the UK struggle with fertility issues and The Human Fertilisation and Embryology Authority estimates that 60,000 people in the UK access fertility services each year. IVF birth rates are now over 3 times higher than 30 years ago, and this is likely to increase.

Sadly, according to the Fertility Network UK, over half of employees experiencing fertility issues feel that they do not receive adequate support from their employers. Fertifa’s white paper “Building a Business Case” goes as far as stating that 88% of employees who feel unsupported during IVF treatment quit or consider quitting.

So, why does this matter? On a wider society level, declining birth rates eventually put pressure on healthcare systems and the economy if a population is without a sufficient workforce to support its growing older population. Japan has one of the lowest birth rates in the world and according to its Prime Minister Fumio Kishida is “on the brink of not being able to maintain social functions.” It is therefore in everyone’s interests that people are supported and encouraged to have families.

From an employer’s point of view, the withdrawal of women because of not being supported during fertility treatment will only add to a larger movement away from the workplace due to other pressures and compounded by the Covid pandemic. This loss of talent, experience and diversity is damaging for employers as well as employees.

It is an employees’ market currently, and businesses are having to compete for the best people. Employees are looking for employment benefits beyond salary. Flexible and creative benefits with a focus on social responsibility are in demand and forward-thinking benefit packages are often valued as important as additional pay. Corporate values are increasingly important in the modern world and companies with family friendly policies make attractive places to work. Fertility benefits may go some way to address the gender pay gap, and also promote LGBT+ equality as they allow more choice in respect of planning a family and balancing this with career progression. According to a survey by Fertifa, 90% of employees who face fertility challenges will move to an employer that offers fertility benefits and support. Similarly, a US based survey by Carrot and RESOLVE consisting largely of women between 35-39 years old, showed that 77% would stay at a company longer if offered fertility benefits.

Current legal protection for fertility treatment

Employees who are pregnant have specific legal protection against unfavourable treatment which is enshrined in section 18 of the Equality Act 2010. The protection applies during what is called the “protected period” which starts from the beginning of pregnancy and ends when the employee’s maternity leave finishes or, if she miscarries early and does not qualify for maternity leave, two weeks after the end of the pregnancy. In a 2008 case (called Mayr), the European Court of Justice looked at when protection kicks in during fertility treatment. The ECJ thought that a woman was technically pregnant when the fertilised ova are implanted into her uterus. This approach was later adopted by the Employment Appeal Tribunal in Sahota v Home Office, where the EAT considered the position where the treatment fails. The EAT was prepared to accept that a woman can be deemed ‘pregnant’ during the period between the date of implantation and the date when it is discovered that implantation was unsuccessful.

In practice, this means that a woman undergoing IVF is within the protected period from implantation until (at least) two weeks after the implantation has been ascertained to be a failure.

In the Sohota case, the EAT rejected the argument that any less favourable treatment of a woman because she was undergoing IVF treatment amounted to sex discrimination. The EAT accepted, however, that a woman undergoing fertility treatment could be protected by sex discrimination laws during the stage between follicular puncture and the transfer of the fertilised ova into the uterus, but only where that transfer is immediate.

The takeaway from this is that the transfer of the embryo is essentially the last stage of the IVF process, and there can be a long, varied and challenging period of treatment leading up to this event. Before the embryo is transferred,  there is limited explicit legal protection.  For example, there is no statutory right to time off for the IVF treatment itself, either for the person who is due to have the embryo transfer or for their partner to accompany them to such appointments.

Conservative MP, Nickie Aiken, has introduced a Private Member’s Bill, (the Fertility Treatment (Employment Rights) Bill) to put IVF treatment on the same footing as ante-natal treatment. The bill is due to complete its second reading on 17 March 2023. The bill provides that employees going through IVF would be entitled to paid time off to attend appointments and for their partners to accompany them to appointments (on an unpaid basis). It would also mean that those undergoing fertility treatment would be protected from discrimination in a similar way to pregnant employees. Many other countries already have these legal protections.

Although the government has recently backed a raft of Private Members’ Bills to bring in the reforms originally planned for an Employment Bill, it remains the case that most Private Members Bills do not ultimately become law. There has not been evidence of government backing for this particular bill. The fact that the legislation has been proposed, however, will prompt discussion and raise awareness and is indicative of an appetite for change.

So what can employers do to support fertility treatment?

Many companies are stepping into this legislative gap and adopting new policies. In the summer of 2021, we surveyed some of the members of our in-house employment lawyers’ club on this issue (and other policy issues). A striking 25% of organisations surveyed said that their organisation already had a fertility policy and a further 13% said they were considering introducing one. The driver was generally to align with company values. The Co-op is among the latest of the large UK employers to announce the launch of a new fertility policy  towards the end of last year.

In addition to policies offering time off for fertility treatment, fertility benefits are part of a growing trend in the UK having become well established in the US. These policies provide more than time off to undergo treatment; they also provide funding for the treatment. N atWest, Centrica, Goldman Sachs, Facebook, and Google now all offer fertility benefit programmes. Apple and Blackrock have also offered egg freezing services and paid for storage.

What are the challenges for employers when designing a fertility policy?

Fertility treatment varies greatly, depending on the fertility issue in question and on the individual person’s biological response to the treatment. This means that the length of the treatment, whether it is done at home or in hospital, and its impact on the employee’s resilience, health and capability to work will vary greatly. Unlike with other medical appointments, employees may have very little choice about the timing of treatment and therefore much less flexibility to arrange appointments outside working hours. Employees may also experience side effects, which might need to be dealt with under the employer’s sick pay policy.

All of this makes it challenging for employers to design a policy. How much time off should be allowed? If paid, where should the cap be? Will the policy set a nominal amount of paid leave but make clear that further paid leave is available at the discretion of the employer? When is absence subject to the usual sickness provisions? Is it sometimes better to agree a temporary flexible working request? What other wellbeing support is on offer? In our experience, good fertility policies will address all of these issues.

Fertility is still a subject which many are reticent to discuss let alone to explore with their managers and bosses. If the employee has not told anyone that they are going through this experience then there is not much that the employer can do by way of support. Therefore it is important to create an environment in which employees feel comfortable in sharing what’s going on. Fertility policies can help with this, by highlighting that this subject is on the radar and not inappropriate for the workplace. It is worth announcing certain individuals as “trusted people” that have had training and understand the organisation’s approach. This could be managers, HR professionals – whomever the employer deems a good fit for such responsibility.

In light of the trend towards covering the cost of fertility treatment, employers should also explore the option of covering fertility treatment costs, either by making direct contributions or through their private healthcare provision.

Conclusion: fertility policies as part of an inclusive family friendly package

The trends of increasing maternal age, declining birth rate and employers giving attention to designing attractive and inclusive family friendly policies all look set to continue rather than go into reverse. Legislative change seems likely at some point, but in the meantime we expect more and more employers to consider fertility policies as part of their diversity, equity and inclusion initiatives and the ongoing drive to attract the best people with their family-friendly offer. Designing a fertility policy is not always straightforward but can mark a positive step towards addressing this important issue in the workplace.