EAT considers extent of sex discrimination protection for woman undergoing IVF treatment
Published: 03:11PM BST 28 Jan 2010
To discriminate against a woman on the grounds of her pregnancy, for example by dismissing her or subjecting her to some other detriment, is direct sex discrimination to which an employer has no defence.
European law has established that it is not necessary for a woman to identify a male comparator when bringing such a claim because pregnancy is a condition unique to women.
A woman who becomes pregnant as a result of IVF treatment is of course entitled to the same legal protections as a woman who becomes pregnant naturally, but what is the position of a woman who is under going IVF treatment but is yet to become pregnant, either because fertilised eggs have yet to be implanted or because implantation has failed but a further attempt is contemplated?
In the earlier case of London Borough of Greenwich v Robinson, the Employment Appeal Tribunal (EAT) ruled that infertility was a medical condition requiring medical treatment and that absence due to such treatment fell to be decided in the usual way. It held that even though infertility was a gender specific illness any less favourable treatment did not constitute sex discrimination.
Last year, the European Court of Justice ruled in the case of Mayr, in which an Austrian woman was dismissed by her employer while undergoing IVF treatment (but just before implantation of eggs). She tried to argue that she should be protected in the same way as a woman who was actually pregnant.
The ECJ rejected this argument; it refused to extend the protections afforded under the European Pregnancy Directive to Ms. Mayr because she could not be regarded as pregnant until implantation had occurred. However, it went on to say that as only women can undergo the final stages of IVF treatment the dismissal of a worker because of such treatment would be direct sex discrimination.
In the recent case of Sahota v Home Office and Pipkin, the EAT reconsidered the extent of protection from sex discrimination during in vitro fertilisation (IVF) treatment in light of the Mayr decision. It held that the ECJ's judgment applied only to the particular circumstances of that case and was not authority for the proposition that any less favourable treatment of a woman on the grounds she is receiving IVF treatment constitutes sex discrimination.
The EAT upheld the tribunal's decision that although Mrs Sahota was entitled to feel that her employer had rather mishandled matters, it had not discriminated against her when it operated its sickness absence procedure in respect of her absence levels, some of which were IVF related.
The EAT also commented that the case was a good illustration of an important point: "...that the fact that an act complained of may occur in the context of, or in connection with, a protected characteristic does not necessarily mean that it was done on the grounds of the characteristic."
