If and what discrimination laws apply to women undergoing IVF treatment has in the past been a minefield.  There is no statutory right to time off to undertake IVF treatment or to receive enhanced sick leave if illness results as a side effect of the IVF treatment.  However, once the fertilised embryo is implanted into the uterus, from a legal perspective a pregnancy has occurred, and the female employee is protected by pregnancy related discrimination.  However, a woman undergoing IVF treatment can still bring a claim for direct sex discrimination, if she is treated less favourably and can show that a male employee would not been subjected to the same treatment.  In this case, the Claimant won her claim for direct sex discrimination.

Mrs Ginger was employed as a work coach at Luton Job Centre.  She successfully underwent IVF treatment and had a son in 2011.  Mrs Ginger embarked again on IVF treatment in 2013, wanting a second child.  Mrs Ginger again became pregnant following two consecutive cycles of IVF treatment, but sadly suffered miscarriages in June and September 2014.  Initially, she was off work for three days in June and then for four months following her second miscarriage in September 2014.  At a return to work interview in January 2015, Mrs Ginger confirmed that she had suffered two miscarriages and was receiving counselling for her losses.  The manager, Mr Mills, who conducted the return to work interview, told Mrs Ginger that “in order to have a miscarriage your pregnancy must be confirmed.”  Mrs Claimant made a claim for pregnancy discrimination, which was upheld by the Employment Tribunal.  In April 2015, undeterred, Mr Mills asked Mrs Ginger if she could cope with a second child and whether it was a good idea to have further IVF treatment.  Mrs Ginger filed an Employment Tribunal claim for sex discrimination.  The Employment Tribunal concluded that Mrs Ginger had been directly discriminated against because Mr Mills would not have spoken to a man in this manner.  The Employment Tribunal also found that her employer’s refusal to grant Mrs Ginger leave in May 2015 to attend further IVF treatment amounted to direct sex discrimination for the same reason.

Ginger v Department for Work and Pensions ET/3401940/2015

Written by Anita Vadgama