05 April 2010
The Employment Appeal Tribunal (EAT) has confirmed the extent to which discrimination on the ground that an employee is receiving IVF treatment is to be regarded as discrimination on the ground of her sex or pregnancy.
Mrs Parminder Sahota, who worked for the Home Office as an immigration officer, claimed that between January and March 2008 she was subjected to various detriments because she was undergoing IVF treatment. Between mid-November 2007 and March 2008, Mrs Sahota underwent two treatments, both of which were unsuccessful.
It was common ground that for a period following each of the implantations Mrs Sahota was to be regarded as having been pregnant. However, the question arose as to whether protection from discrimination on the ground of pregnancy extends to women undergoing IVF treatment who are not pregnant – either because the treatment has begun but implantation has not yet taken place or because an implantation has failed but further implantation is contemplated.
Case law clearly recognises that if a female worker is off work because of a gender-specific illness, even one attributable to pregnancy or confinement, less favourable treatment on account of that absence does not constitute sex discrimination if a male worker would have been treated in the same way, although a woman may be protected under the maternity leave provisions. Mrs Sahota contended, however, that it is wrong to treat the position of a female employee undergoing IVF treatment as comparable with that of a man undergoing medical treatment and that to subject a woman to a detriment on the grounds that she is undergoing such treatment constitutes sex discrimination.
In this case, the EAT upheld the decision of the Employment Tribunal and dismissed the appeal because the acts Mrs Sahota complained of either did not amount to a detriment or harassment or, even if they arose from it or from circumstances connected with it, were not done because she was undergoing IVF treatment.
However, the EAT did consider the extent to which discrimination on the ground that an employee is receiving IVF is to be regarded as discrimination on the ground of her sex or pregnancy, a question dealt with by the European Court of Justice (ECJ) in Mayr v Flöckner.
Discrimination against a woman on the ground of her pregnancy is direct sex discrimination and there is no need to identify a male comparator. Clearly, a woman undergoing IVF treatment qualifies for the same protection after the implantation stage of IVF up until two weeks after the end of the pregnancy.
In addition, following Mayr v Flöckner, to subject a female worker at an advanced stage of the IVF process to a detriment because she is undergoing the treatment would amount to direct discrimination on the grounds of sex as the treatment involved is only given to women. However, this refers only to the narrow period between the follicular puncture and the immediate transfer of the fertilised ova into the woman’s uterus. The judgment of the ECJ was specific on this point as in some EU member states fertilised ova may be kept for a long time or stored as a precautionary measure. There could therefore be a very long period during which implantation remained contemplated. If this period were to be regarded as equivalent to pregnancy, there would be no definitive point at which this could be said to have come to an end, which would be inconsistent with the principle of legal certainty.
For legal advice on making sure your maternity policies and procedures are up to date contact senior associate, Kathryn Fielder on 01753 279029, complete the online enquiry form or email employmentlaw@bpcollins.co.uk. |
