According to the Fertility Network UK, it is estimated that 3.5 million people in the UK struggle with fertility. Sadly, over half of the employees experiencing fertility issues report feeling that they do not receive adequate support from their employers.
More employers are launching IVF and assisted conception policies amid calls for greater legal protection for employees undergoing fertility treatment.
So, what should you consider?
Purpose
Explain that the policy aims to describe the support available to people undergoing assisted conception treatment. Define what treatment is included. For example:
Intrauterine insemination (IUI).
In vitro fertilisation (IVF).
Freezing eggs.
Retrieving sperm surgically.
Acknowledge the physical, emotional and financial stresses of undergoing assisted conception treatment.
To whom will the policy apply?
Stating your policy as non-contractual will allow you to change it without seeking the agreement of the entire workforce. It will also minimise the risk that your company's failure to adhere to its policies would amount to a breach of an employee’s contract of employment.
Explain whether your policy will only apply to employees. If so, expressly state that it does not apply to agency workers, consultants, self-employed contractors, volunteers or interns.
Who will be responsible for the policy?
Decide whether your board of directors will have overall responsibility for the effective operation of the policy or whether it has delegated that responsibility. For example, to the Head of HR. Direct queries and suggestions to the body or person that is responsible.
Commit to when you will review the policy. Remember to set a calendar reminder.
To what treatment will the policy apply?
Clarify whether you will treat fertility investigations and tests (as opposed to treatment) in the same way as other medical appointments. Doing so may reduce the risk of successful sex discrimination claims from men. Encourage employees to arrange appointments outside their normal working hours where possible, while acknowledging that some investigations will need to take place at certain points in a woman's cycle.
Explain what evidence you will accept to permit paid time off for treatment. For example, a letter, e-mail or appointment card from the relevant hospital or clinic.
Decide whether you will treat sickness owing to fertility-related medicines under your sickness absence policy.
Will you allow paid time off?
If so, how much and when. You could, for example, offer five days in each calendar year or five days per treatment cycle. If you leave it to managers' discretion then, to reduce the risk of complaints, provide clear guidance on the factors that they should consider.
Women are more likely to experience more invasive treatment over a longer period. So, you may wish to offer more generous terms to women. Remember to reduce the entitlement pro-rata for part-time employees.
Consider whether you need to refer to any related policies such as Flexible Working, Sickness Absence and Compassionate Leave
What more support will you provide?
Consider whether you will provide a non-exhaustive list of ways that you can help. For example:
A fridge for storing medication.
A quiet space to inject.
The flexibility to take last-minute confidential phone calls.
Remember to provide a point of contact such as a line manager or HR to discuss any other measures that your employee may need.
How will you treat any resulting sickness?
The whole period of pregnancy and statutory maternity leave is a 'protected period' during which any detriment or dismissal for a pregnancy-related reason or a reason connected with the birth would be unlawful. If you have a policy that may lead to dismissal once an employee reaches a certain amount of aggregated sickness absence, you must disregard any absence related to pregnancy or maternity during the protected period.
For IVF, from implantation of a fertilised ovum onwards, a woman is in the protected period and therefore entitled to protection from pregnancy discrimination.
You may decide to discount any sickness absence connected with IUI or IVF treatment when considering any trigger points in your sickness absence policy and record such absences separately. This may be easier than treating sickness absence before and after implantation differently.
How will you treat accompanying someone to appointments?
Decide how much time to permit an employee accompanying someone undergoing assisted conception treatment and whether you will pay them for that time.
You should request notice and encourage appointments to be arranged outside normal working hours.
How will you approach failed treatment cycles?
Failed IUI and IVF treatment can cause significant distress. Decide whether you will permit leave after a failed IUI or IVF treatment cycle and whether it will be paid. You should define a failed treatment cycle as one that does not result in a confirmed pregnancy. Refer to any other relevant policies.
Confidentiality
People will want to limit the number of colleagues who know about their fertility investigations, tests or assisted conception treatment. Encourage your employee to speak to their line manager or HR, to decide how they wish any related absences from work to be communicated to colleagues.
Reassure them that you will maintain confidentiality as far as possible and refer to your Data Protection Policy.
Sources of support
Provide a list of external organisations that employees may find helpful:
Fertility Network UK, which operates an information line.
British Fertility Society and Human Fertilisation and Embryology Authority (HFEA), provide information about IVF and other fertility treatments.
Miscarriage Association, which operates a helpline.
Tommy’s, which provides pregnancy and baby loss information and support.
The Fertility Foundation provides IVF grants and fertility support.
Explain how employees can complain if their treatment has led to bullying, harassment or some other detrimental treatment. Refer to your bullying and disciplinary policies as appropriate.