Pregnancy, maternity and IVF

Pregnancy, maternity and IVF fertility treatment are all circumstances that could give rise to sickness absence. Under the Equality Act 2010 it is unlawful to treat an employee unfavourably because of a pregnancy-related illness during the “protected period”, which begins at the start of the pregnancy and finishes at the end of the maternity leave period. However, it is not pregnancy or maternity discrimination to dismiss someone for pregnancy-related sickness absence, such as post-natal depression, that continues after the maternity leave period has ended (see page 65).

If an employee is sick during her pregnancy, she should be treated the same as any other member of staff who is off sick and should receive sick pay in the same way as other staff. It should not automatically trigger her maternity leave (although if she is on sick leave during the last four weeks of her pregnancy, the employer can insist that her maternity leave starts at this point).

The right to Statutory Sick Pay (SSP) technically ceases for a worker on a pregnancy-related absence in the four weeks before the due date, otherwise it is payable up to the day before Statutory Maternity Pay (SMP) or Maternity Allowance (MA) is due to start. However, in practice, an employer can choose to disregard odd days of pregnancy–related sickness absence. Pregnant women can claim SSP unless they are sick for a pregnancy-related reason within four weeks of the baby’s expected week of birth, in which case they will start getting SMP or MA. Women cannot claim SSP and SMP at the same time.

Once the maternity leave has started, sick pay cannot be received from the employer if the employee becomes ill. If the employee remains off sick after the date when her maternity leave was due to end, the employer’s usual sickness procedure will apply. If a woman is unable to return to work at the end of maternity leave, the length of her sickness absence should be calculated from the date she was due to return (Kwik Save v Greaves [1998] IRLR 245).

For a woman undergoing in-vitro fertilisation (IVF) there is no statutory right to time off — paid or unpaid — to undergo fertility treatment. Some employers, especially in unionised workplaces, have agreed specific procedures for time off. If the treatment makes the individual feel unwell, they should be entitled to sick leave and pay under normal sickness absence rules.

The Equality Act 2010 Code of Practice says the unfavourable treatment of someone undergoing IVF — for example refusing time off — is not pregnancy or maternity discrimination. This is because a woman is not deemed pregnant until the fertilised ova have been implanted in the uterus. However, the employer risks engaging in sex discrimination if the woman can show that a man in a similar situation would have been treated more favourably (for example, if penalised for asking for time off for IVF appointments, whereas an equivalent male employee would not be penalised for asking for time off to attend hospital appointments). Once the ova have been implanted, there are the same rights to paid time off and other protections as for any other pregnant woman.