Background Facts

An appeal was brought to the Employment Appeal Tribunal (EAT) considering (inter alia) the issue of whether or not IVF treatment should be treated as equivalent to pregnancy for the purposes of the Sex Discrimination Act.  The importance of this question is partly because to claim sex discrimination under the Sex Discrimination Act a pregnant employee does not have to identify a comparator (the Courts having in the past held that a sick employee for example is no comparator and that pregnancy is a unique condition) this effectively gives pregnant women a great deal of protection in law.  The appeal failed for other reasons not relevant here however the EAT has expressed their view in the Judgment on the comparability of IVF treatment and pregnancy:

1. A woman undergoing IVF treatment is to be regarded as pregnant for the period following the implantation of the fertilized ova until the end of the period (ie effectively the end of the maternity leave) as set down in the Sex Discrimination Act.
2. Prior to implantation, less favourable treatment of a woman on the grounds she is receiving IVF treatment may constitute sex discrimination during the limited, closely defined period already set down in case law. The period in question is the advanced stage between the follicular puncture and the immediate transfer of the in vitro fertilised ova into the uterus. The EAT did not accept there should be a wider period of protection.

Comment

This is clearly a technical area however whilst it is difficult to argue that a woman undergoing IVF treatment should not be treated the same as a pregnant woman following plantation of a fertilised ova (as paragraph 1 above) it was considered that the Courts may find a wider protection for the early stages of IVF treatment.  In the end the EAT did not accept those arguments and refused to grant further rights/protections.