Facts
The Employment Rights Act 1996 provides statutory rights and protection from dismissal in relation to pregnancy which are derived from the Pregnant Workers Directive (PWD).
In this case, an employee in the early stages of IVF treatment was dismissed by her employer several days before the implantation of the fertilised eggs. The European Court of Justice (ECJ) was asked to consider the point from, which under the PWD, a pregnant woman is entitled to the protection against dismissal. The ECJ held that pregnancy could not be taken to start before fertilised eggs had been implanted in the woman. In this case, the ova were fertilized but not yet implanted. The employee was not therefore pregnant and was not protected by the PWD.
However, the ECJ went on to find that the dismissal of a woman, if related to her IVF treatment, constituted direct discrimination on grounds of sex under the Equal Treatment Directive. Click here for full judgment.
Comment
Whilst, as a result of this case, an employee undergoing IVF treatment can be protected from dismissal, requests for time off for fertility treatment are not covered by the right to paid time off for ante-natal care.
However, in practice, some employers appreciating that IVF treatment can be a stressful time for employees deal sensitively with a request for time off and do allow it. Employers may wish to implement a policy dealing with leave and pay for IVF treatment.
EEF’s new guide ‘Work and Families: An employer’s guide to the law’ is released in April 2008, and gives practical advice in relation to family leave and flexible working rights of employees. It also contains a set of up-to-date policies, a maternity checklist and timeline.