Employer Legal Obligations During Fertility Treatment (UK)

This is awareness information only. It is not legal advice. Always seek formal HR or legal advice before making any employment decision that may be affected by these provisions.

Fertility treatment is not a named protected characteristic under the Equality Act 2010. However, several provisions are directly relevant to how you manage employees in this situation.

Treating an employee less favourably because of fertility treatment may constitute indirect sex discrimination, as treatment disproportionately affects people who menstruate in terms of physical burden and time off requirements. Where you are uncertain whether your approach could create this risk, seek HR or legal review.

Depression or anxiety arising from fertility treatment may qualify as a disability under the Equality Act 2010 where it has a substantial and long-term adverse effect on normal day-to-day activities. Whether the threshold is met in any particular case is fact-specific.

An occupational health practitioner can advise on workplace adjustments; ACAS, a trade union, or an employment solicitor are the references for the legal position.

From the point of embryo transfer, the Equality Act 2010 generally treats an employee as pregnant for pregnancy and maternity discrimination purposes (s.18). In practice this means:

• Decisions to dismiss or change working arrangements after this point are typically scrutinised closely against pregnancy/maternity provisions

• HR and legal teams generally take advice before making such decisions

• ACAS guidance on pregnancy and maternity at work is the practical reference

Requiring an employee to use annual leave for fertility treatment appointments, without applying the same approach to comparable medical appointments, may raise an indirect sex discrimination question. If you are uncertain about the approach, ACAS guidance and your usual HR/legal advisors are the right reference.

Where an employee is treated less favourably because of their partner's fertility treatment, this may raise associative discrimination concerns in some contexts. This is not straightforward, but where a pattern of adverse treatment is observed, it is good practice to flag it to HR.

You do not need to be a legal expert. What you do need to do is:

1. Not treat fertility treatment differently from other medical conditions without justification

2. Apply a consistent approach to appointment flexibility

3. Involve HR before making any formal changes to working arrangements for an employee who has disclosed fertility treatment, particularly after embryo transfer

4. Document your decisions and the reasons for them

When in doubt: ask HR. The legal landscape here is genuinely complex and fact-specific.