Sex Discrimination Protection for IVF Treatment
Update on Working with Children and Vulnerable Adults
Additional Bank Holiday in 2012
Normal Minimum Pension Age to Rise in April 2010
Sex Discrimination Protection for IVF Treatment
It has long been established that employees who are pregnant enjoy a significant level of legal protection. Discrimination on grounds of pregnancy is automatic sex discrimination. This was reflected in October 2005 when section 3A was inserted into the Sex Discrimination Act 1975 (SDA) which prohibits less favourable treatment from the time an employee becomes pregnant until the end of her maternity leave. This is known as the “protected period”.
More and more women are taking time off from work to receive fertility treatment. A woman who becomes pregnant as a result of IVF treatment is entitled to the same legal protection as a woman who becomes pregnant naturally. However, for the purposes of the SDA, what is the position of a woman who is undergoing treatment but has not yet become pregnant? The Employment Appeal Tribunal has explored the issue recently in Sahota v Home Office.
Case study
Mrs Sahota had been employed by the Border and Immigration Agency for the Home Office, since 1996. Mrs Sahota received two courses of IVF treatment; the first at the end of 2007 and the other in early 2008. The treatments were unsuccessful. She and her employer had agreed that for a period of time following each treatment, she would be regarded as being pregnant.
Mrs Sahota brought a claim of sex discrimination alleging that between January and March 2008 she was subjected to various detriments because she was undergoing IVF treatment. Amongst other claims, she alleged that she had been suspended for taking “too much time off work” due to receiving IVF treatment. She contended that 12 days of her absences were in direct conjunction with the IVF treatment and should have been disregarded when the employer was reviewing her attendance record.
At the first hearing, the Employment Tribunal referred to the earlier case of London Borough of Greenwich v Robinson , where it was decided that even though infertility was a gender specific illness, any less favourable treatment in connection with time off for IVF treatment did not constitute sex discrimination. The Tribunal also considered the European Court of Justice decision in Mayr v Bäckerei und Konditorei Gerhard Flöckner which concluded that an employee could not be regarded as pregnant until implantation had occurred.
Mrs Sahota lost her claim of sex discrimination at the Employment Tribunal. The Tribunal decided that the alleged acts of discrimination had not been done on the ground of Mrs Sahota’s sex or the fact that she was undertaking IVF treatment. Mrs Sahota appealed the decision.
The decision
The EAT upheld the tribunal's decision. 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. When reviewing Mrs Sahota’s attendance record the employer was entitled to take into account absence that was related to IVF treatment, up until the point when Mrs Sahota became pregnant.
The EAT confirmed that once an employee becomes pregnant following IVF treatment, the employee is entitled to the same protection as an employee that has become pregnant naturally. For employees who have become pregnant following IVF treatment, the “protected period” (see above) starts when fertilised ova are implanted (when she is regarded as being pregnant). When an implantation fails, and the pregnancy ends, the protected period ends after a further two weeks have elapsed in accordance with section 3A(3) of the SDA. A woman undergoing IVF treatment will also be protected for an additional, albeit limited, period of time before implantation. This is the time it takes for ova to be collected, fertilised and the "immediate" implantation of the fertilised ova. An employee is not protected during the long period between the freezing of fertilised ova with a view to implanting at a later date.
The central concern of most employers in relation to this issue is how they might manage an employee's pattern of absence during IVF treatment. To that end, employers may wish to consider putting in place a policy to deal with requests for time off, to ensure all staff are treated fairly and consistently, informing employees they will be required to take time off from work for IVF treatment as annual leave or unpaid leave.
Update on Working with Children and Vulnerable Adults
In our September bulletin, we outlined the proposed changes to the law relating to working with children and vulnerable adults which were to be implemented through the Vetting and Barring Scheme (VBS). However, after receiving wide-spread criticism, the Government has now proposed changes to the original scheme.
The criticism received by the VBS is primarily in relation to the level of contact with children or vulnerable adults resulting in the need for individuals to register with the Independent Safeguarding Authority (ISA). Under the current guidelines, anyone spending one day or more per month with children or vulnerable adults will have to register; this translates to around 11 million people applying to the ISA for registration.
The press have highlighted that with need for so many additional registrations, many individuals will be discouraged from volunteering in schools and other settings. Several children's authors have even expressed concern. As many authors visit schools and children's groups to read extracts from their books, they too would need to be registered, despite spending a very limited time with each group of children.
In response to these concerns, the Government requested that Sir Roger Singleton, the chief advisor on child safety and Chair of the ISA, prepare a report examining whether the scheme struck an appropriate balance between protecting children and vulnerable adults and avoiding unnecessary bureaucracy.
Sir Roger's report recommended the following changes to the current proposals:
• A common sense approach should be taken when the arrangements relate to informal agreements for the care of children by parents, friends and overseas exchange visits of 28 days or less
• In cases such as babysitting or school runs, there would be no need to register with the ISA provided all parties were content with the arrangements
• In cases where an individual (such as an author or celebrity) visits a school or similar situation, there will be no need for them to register unless they frequently have contact with the same groups or the contact is intense
Sir Roger also recommended that the test for frequent and intensive contact should be amended so that ‘frequent contact’ will count as work with children or vulnerable adults on an ongoing basis occurring once a week or more. Intensive contact will be work taking place either overnight or over four days in the space of a month.
However, the report stated that if organisations such as schools and social clubs make decisions as to which adults should be working with children or vulnerable adults, the individual approved by the school or social club will need to register with the ISA, provided the contact is frequent or intensive.
In preparing his report, Sir Roger was guided by the principles that the state should not interfere in a parent’s choice as to who looks after their child. If those choices are taken away and made by other bodies (such as schools or hospitals), the state should only exercise the minimum control to ensure the safety of the child or vulnerable adult involved. It is understood that in using these principles as guidance, the report has attempted to deal with the main criticisms given against the scheme and has reduced the number of potential registrations from an estimated 11 million to 9 million.
However, the report has met with mixed reviews from the press. Some suggest the scheme still shows a lack of respect for volunteers and those working with children and vulnerable adults by implying that everyone is potentially a paedophile. Others suggest that in allowing overseas visitors to remain unvetted for up to three months or removing the need for overseas exchange families to be unvetted, the scheme is not going far enough.
Further information on the Scheme, including the steps you will need to complete and whether you will need to register with the ISA can be found at www.isa-gov.org.uk.
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Additional Bank Holiday in 2012
The Government has recently announced that there will be an additional bank holiday in June 2012 as part of the celebrations to mark the Queen’s diamond jubilee.
This means that the late May bank holiday will be moved to 4 June 2012 and an extra bank holiday will be added on 5 June 2012. There will therefore be a total of nine bank holidays in England and Wales in 2012.
Normal Minimum Pension Age to Rise in April 2010
On 6 April 2010, the Normal Minimum Pension Age (NMPA - the earliest age when a member of a UK registered pension scheme can ordinarily draw their pension) for occupational and personal pension schemes will rise from 50 to 55. There are two exceptions to this rule:
• Ill-health – members who meet the ill-health condition can continue to receive early payment of their pensions.
• Protected pension ages – members who had an unqualified right (including a prospective right) on 5 April 2006 to take their pensions between the ages of 50 and 55 which must have been contained schemes documents on 10 December 2003 (when it was announced by the government) are entitled to exercise that right after the change to NMPA comes into effect.
The new normal minimum pension age applies to all occupational and personal pension schemes that receive tax relief. If members are aged between 50 and 55 and already receiving pension payments, this change to the normal minimum pension age will not affect those payments.
To prepare for this change, employers should:
• Check whether scheme rules confer protected pension ages for certain members
• Consider whether scheme rules need to be amended
• Prepare announcements for affected members
• Ensure scheme administration systems are in place to deal with complex and transitional cases.
