Do employees have a statutory right to time off for fertility treatment?

No, employees do not have a statutory right to take time off, paid or unpaid, for fertility treatment such as in vitro fertilisation (IVF). Employers may provide a contractual right to time off in these circumstances, or could deal with requests for time off on a case-by-case basis. However, employees do have certain employment rights in relation to undergoing IVF, depending on the stage of the process that they have reached.

For the purpose of entitlement to employment rights, a woman undergoing IVF is deemed to be pregnant from the point of implantation of fertilised ova, until it is determined otherwise (Mayr v Bäckerei Und Konditorei Gerhard Flöckner OHG [2008] IRLR 387 ECJ) (a pregnancy test is usually taken two weeks after implantation to determine whether or not the treatment has been successful). An employee would therefore be entitled to time off for antenatal appointments from the point of implantation. This right applies to any appointments that are made on the advice of a registered medical practitioner, registered midwife or registered nurse.

A woman is protected from pregnancy and maternity discrimination from the point of implantation, without the need for a male comparator. At the earlier stages of the treatment, the employee may be protected by provisions relating to sex discrimination. Therefore, an employer that dismisses or takes other action against an employee because they need time off for IVF treatment may face a discrimination claim.

At any stage during the process, the employee may be signed off by a doctor, due to the effects of the treatment. The employer must treat this like sickness absence for any other reason and deal with the employee's entitlement to statutory sick pay and any contractual sick pay in accordance with its normal rules.

Employers should consider having a policy on fertility treatment. This should cover time off for both female and male employees who are undergoing treatment. For example, the policy could allow for paid time off for a set number of appointments, after which the employee can take annual leave or unpaid leave.