In our latest news alert, Partner and General Counsel Beth Hale and Associate Yulia Fedorenko discuss what employers can do to ensure that their workplace policies promote family-friendly rights and the benefits of doing so on talent retention and diversity, equity and inclusion.
Properly drafted and thoughtful family-friendly policies are important for employers and employees alike. A well-drafted policy can help employers to attract and retain a wider talent pool and contribute towards diversity, equity and inclusion. It also provides a framework for those making requests and decisions – making conversations about sensitive and delicate issues potentially easier for employees and employers.
In recent years, there has been a welcome move by employers towards more creative and considered family-friendly policies, particularly those aimed at creating a supportive environment for workers who wish to proceed with non-traditional methods of having a family such as IVF and surrogacy. The statutory protections in this area are not quite up to speed with the reality and range of issues and choices with which many employees are faced and employers should consider how they can best support their staff beyond the statutory framework.
IVF policies offer a range of benefits, ranging from paid time off to financial contributions or loans towards the treatment. It has been reported that General Mills and Lidl offer paid time off to attend IVF appointments. Some employers, such as Cooley and Clifford Chance, offer part-funding towards the cost of IVF treatment. Both these benefits go beyond the protection available in law and are subject to employers’ discretion.
Workers who undergo IVF treatment have limited protection in law. There is currently no legal right to paid time off work to attend IVF-related appointments or for any sickness absence caused by the treatment. IVF appointments and IVF-related sickness absence can be treated as ordinary medical appointments and sickness absence by employers respectively. A line was drawn by the European Court of Justice when a female worker was dismissed on the grounds of absence for attending an important stage of IVF treatment (collection of egg cells ‘ova’). It was held that the dismissal amounted to sex discrimination contrary to the EC Equal Treatment Directive (76/207/EC). The decision also suggests that any other unfavourable treatment towards female workers undergoing IVF, may also amount to sex discrimination as it will, arguably, pertain to sex.
The Equality and Human Right Commission in its Code of Practice (the ‘Code’) has suggested that employers adopt procedures addressing fertility treatments and recommends treating workers with sympathy and compassion. The Code also outlines that unfavourable treatment could amount to sex discrimination. Therefore, adopting clearly defined policies (albeit with inbuilt flexibility to allow for particular circumstances) will minimise the risk of disputes. Although the Code is silent on the treatment towards male workers that support their IVF partners, it is, of course, equally advisable to treat male workers with sympathy. Generally, employers should be cautious around discrimination issues – benefits should be offered irrespective of gender and sexual orientation.
The law provides that prospective legal parents in a surrogacy arrangement, subject to other legal requirements, generally have an option to either take adoption leave or parental leave. One person is not entitled to receive both. There is no provision for maternity leave, although this may change in the future following the Law Commission’s consultation on surrogacy law. While surrogacy is unlikely to be a common occurrence, employers could consider offering paid time off for relevant appointments as well as offering paid leave equivalent to that offered for those on maternity leave. Some employers offer assistance with the surrogacy process, but this should be undertaken with caution and advice as the legal framework for surrogacy is complex and varies significantly in different jurisdictions.
In the event of a stillbirth, which is defined as pregnancy loss on or after 24 weeks, employees have a statutory entitlement to full periods of maternity, paternity and shared parental leave. Furthermore, both parents may be entitled to parental bereavement leave and pay.
While there are proposals to introduce a statutory right to paid time off in the event of a miscarriage (for both parents), currently when a pregnancy ends before 24 weeks, there is no statutory entitlement to maternity or paternity leave, or to any bereavement leave.
Employers may wish to offer to employees more generous support covering situations such as miscarriage, stillbirth and abortion. This is an area in which clear policies can facilitate more open discussions where staff might otherwise be unwilling to disclose a pregnancy loss to their employer. By way of example, Channel 4 appears to offer its employees paid 2 weeks’ leave, paid medical appointments, counselling and medical support, flexible working, and a support system to help employees returning to work after a child loss. The Miscarriage Association provides a template pregnancy loss policy which is a useful starting point for employers.
A Private Member’s Bill (supported by the Government) is currently going through Parliament which would give parents whose babies require specialist neonatal care the right to take additional paid time off work. This will be a day one right for employees and will allow significant new flexibility for parents of children who are born prematurely or who are admitted into hospital soon after birth.
There are additional points that employers should consider prior to including family-friendly benefits into their handbooks:
- Financial support
It may not always be possible to receive NHS funded IVF treatment and private clinic’s fees may be beyond workers’ reach. Employer should consider whether it can contribute towards the fees or offer an interest free loan. However, it should consider its position carefully before offering financial support in its surrogacy policy as certain legal restrictions apply.
- Leave of absence
If an employer is willing to grant workers (of both sexes) paid leave to attend fertility related appointments, it should consider how many days it is willing to grant in one year and include flexibility on giving of notice, as appointments are likely to take place at short notice. It also should consider whether it is willing to grant paid leave to workers who accompany the person receiving fertility related treatment.
- Emotional support
Undergoing fertility treatment can be an emotional rollercoaster – it may not always be successful or it may take longer than originally anticipated. The treatment may also cause various side effects. Pregnancy loss can also cause tremendous trauma and stress. Therefore, it is also important for an employer to consider what emotional support it can offer and whether a worker can take additional leave of absence to deal with the emotional as well as any physical impact.
- Designated person
It is important to treat workers’ fertility or pregnancy loss matters with strict confidentiality and sensitivity. It is advisable to have a designated and suitably trained person assigned to deal with these matters.
If you are a multinational employer or HR advisor and would like to discuss the matters raised in this alert further or are considering taking steps to implement or update your workplace policies, or for guidance on your specific rights, responsibilities and potential liabilities, please contact Partner and General Counsel Beth Hale and Associate Yulia Fedorenko, both of whom specialise in employment and partnership issues for multinational employers, senior executives, partnerships, LLPs, partners and LLP members.
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