Offering women employees the opportunity to freeze their eggs could be viewed as discriminatory.

Think employee benefit and what springs to mind? Company car? Health insurance? The opportunity to have your eggs frozen so that you can delay having children is probably not something you would automatically think of. Yet this, it seems, is one of the many benefits two goliaths of the technology industry have chosen to offer women employees.

Facebook and Apple are to offer female employees £20,000 towards egg freezing, it has been reported. According to Facebook the ‘benefit’ is being offered after numerous requests from staff who want to focus on their careers during their ‘child-bearing’ years but do not want this to affect their plans to eventually have a family.

Some women would welcome such a move. Indeed, this funding is being made available because there is a demand for it. Many women do not want to take a break – even a small one – from their careers in order to have children. But they know they have a window of time in which to do so and would be grateful of any plan that at least gives them a fighting chance of having children in later life if they choose to focus on their work during their most fertile years.

Certain sectors are extremely competitive – the technology industry in Silicon Valley being one – and Facebook and Apple want to attract the best of the best by offering a catalogue of benefits.

This is just one of many ‘family-oriented’ perks on offer from two firms that often top lists of the best companies to work for. Facebook offers a $4,000 cash bonus to new parents and Apple offers 18 weeks of paid maternity leave – a huge improvement on the statutory 12 weeks unpaid in the US (and six weeks at 90% of average weekly earnings in the UK).

The problem with their new proposal arises from what it implies, which is that women who choose to have children naturally at a younger age are somehow sacrificing their career. The message is that having a baby and a successful career do not mix, at least not in Silicon Valley.

Apple and Facebook are at risk of looking controlling, trying to determine how their employees should live their lives, right down to the hugely personal decision of having children. And it is these implications and perhaps misconstrued messages that leave the tech giants at risk of falling foul of employment law.

While both firms claim they are taking this step to help women and give them a fairer chance of succeeding within such a competitive industry, it may be interpreted very differently. Apple and Facebook could face discrimination claims if women feel they are being pressured into delaying having children. If women at these firms are made to believe choosing to have children young will be detrimental to their careers, they could claim they are being treated unfairly.

And of course, these employers need to be aware of gender discrimination. In the UK, under the Equality Act 2010 all employees must be treated the same, regardless of gender. If this benefit is being offered to women but a similar benefit is not offered to men (for example, the option to have their sperm frozen) the employer could be guilty of sex discrimination.

The way in which we work and live has changed. However, the laws regarding work and family life have been slow to follow. Employees have a right to request flexible working when returning to work after having a baby but that is where their entitlement ends. Whether or not the employer agrees to the terms requested is up to them. The impact of such issues on businesses needs to be considered, but employers should remember that staff motivation and morale is key to retention and success. Flexibility and understanding are often the basis of that.

Ironically Facebook and Apple seem to have been acting on this principle but, as the backlash has shown, have been misguided in their approach.

Derek Dawson is a solicitor at Paul Crowley & Co Solicitors

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