IVF

The need to be pregnant to qualify for protection from pregnancy discrimination impacts on the legal protection that is available at work for women who undergo IVF treatment. A woman in the early stages of IVF who suffers unfavourable treatment because of her IVF treatment, for example, being penalised for taking time off for IVF appointments, cannot claim pregnancy discrimination, because she is not yet pregnant. Any negative treatment she suffers may be sex discrimination (see page 26), but only if a man taking the same amount of time off for hospital appointments would have been treated better (Sahota v The Home Office and Pipkin [2009] UKEAT 0342/9/1512).

However, the legal position changes at the advanced stages of IVF, between the retrieval of the ova and the immediate transfer of the fertilised ova into the uterus. At this stage, a woman can bring a claim for direct sex discrimination without comparing herself to a man. This is because the European Court of Justice has acknowledged that only women can undergo invasive IVF treatment (Mayr v Backerei und Konditoreir Gerhard Flockner OHG [2008] IRLR 387).

A man who is refused work adjustments requested because he and his partner are undergoing IVF (for example, due to concerns about the impact of work temperature on sperm count) would need to claim for sex discrimination and establish that a hypothetical woman who asked for a similar adjustment to working conditions would have been treated better.