IVF not equivalent to pregnancy when it comes to discrimination laws

If an employer treats a woman less favourably because she is pregnant then it can be clearly viewed as sex discrimination. But, what would be the case if a woman was undergoing IVF treatment?

Gemma Burnham, a solicitor in Hewitsons’ Northampton employment team, says a recent case involving a Home Office employee has made the legal situation a lot clearer.

The employee, Mrs Sahota, claimed that she had been discriminated against by her employer, the Home Office, because she was undergoing IVF treatment. She argued that IVF treatment was equivalent to pregnancy and that, therefore, she was entitled to the same protection from discrimination as a pregnant employee.

Mrs Sahota argued that IVF treatment in itself was equivalent to pregnancy and that she should, therefore, have been protected from discrimination during the period before egg implantation when she was taking medication and undergoing tests in preparation for the implantation.

But the Employment Appeal Tribunal (EAT) rejected Mrs Sahota’s claims. It decided that IVF treatment in itself is not equivalent to pregnancy but that it is a medical treatment for a gender specific illness.

It is well established that less favourable treatment based on a gender specific illness does not automatically constitute sex discrimination. Therefore absence due to such illnesses may, in some circumstances, such as for the payment of company sick pay, be treated in the same way as “normal” sickness absence.

Gemma said: “This case is useful, particularly for employers, as it makes it clear that IVF treatment in itself is not equal to pregnancy and does not, therefore, attract the same protection from discrimination as pregnancy under the Sex Discrimination Act.

“Employees undergoing IVF treatment will only be entitled to such protection during the “protected period” and outside of this period any absence relating to the IVF treatment may, in certain circumstances, be treated in the same was as normal sickness absence.”

For further information about this particular issue or any other employment related matter contact Gemma or another member of the Northampton employment team on 01604 233 233.