By Rachel Dineley, Beachcroft, London


Employees, pregnancy IVF treatment and the law

The European Court of Justice decision in Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG (Case C-506/06) addresses the very technical question of whether and when a woman undergoing fertility treatment is pregnant and entitled to protection under the Pregnant Workers Directive. Despite the technicalities, the case is a worthwhile reminder of the rights and responsibilities of employees and employers when an employee falls pregnant.



Mayr was employed as a waitress by Flöckner in Salzburg, Austria, from 3 January 2005. In a course of attempted in vitro fertilisation, after hormone treatment lasting for about one and a half months, a procedure was carried out to fertilise her ova on 8 March 2005. Her doctor certified her as sick from the 8 March to the 13 March.



On 10 March she was telephoned and informed that she was dismissed with effect from 26 March. It was common ground that, on the date she was given notice (10 March) her ova had already been fertilised and that the fertilised ova was transferred into her uterus on 13 March. She claimed payment of her salary and pro rata annual remuneration from Flöckner, maintaining that the notice of dismissal given on 10 March had no legal effect because from 8 March she was entitled to the protection against dismissal provided by Austrian legislation.



In due course, the Salzburg Court referred a question to the European Court of Justice (ECJ) for a preliminary ruling. The critical issue was whether a worker who undergoes in vitro fertilisation is a pregnant worker within the meaning of Article 2(a) of the Pregnant Workers Directive (Directive 92/85), such that she could claim protection by way of prohibition of dismissal, as provided for in Article 10(1).



The ECJ came to the view that Mayr could not be regarded as pregnant at the point when she was given notice. Pregnancy can only begin once the fertilised egg has been implanted. The fact that fertilised eggs can be stored for up to ten years was an important factor in reaching this decision.



The court made clear that women are protected by European law as it relates to equal treatment of men and women (as implemented in the UK by the Sex Discriminations Act). Consequently, it would be direct sex discrimination to subject a woman to a detriment or to dismiss her for undergoing (or, indeed, planning to undergo) invasive fertility treatment.



What lessons can be learned here by employers and their lawyers? The practical issue, which will most commonly arise, is the need for an employee to take time off work in order to undergo IVF treatment.



The ECJ's judgment makes clear that absences for fertility treatment should be treated in the same way as absences related to pregnancy and that, accordingly, they should not result in adverse treatment of the employee, whether in terms of disciplinary action, selection for redundancy, demotion, dismissal or any other unfavourable treatment.



Plainly, an employer can only address properly any issues arising if they are aware of the employee's position. It will be wholly inappropriate to invade an employee's privacy and ask intrusive questions with respect to the treatment an employee is undergoing. However, once an employer has been put on notice that such treatment is being undertaken, consideration will need to be given to the employer's responsibilities in those circumstances. Most importantly, the employer should look to undertake the appropriate risk assessment.



If necessary, appropriate adjustments to the employee's working conditions should be made to address the risks identified. If it is not reasonable to alter the employee's working conditions, or if the risk cannot be avoided, the employer must offer the woman suitable alternative work. This is provided for in section 67(1) of the Employment Rights Act 1996. An offer of alternative work will be suitable where it is of a kind both suitable and appropriate for the employee in the circumstances. The terms and conditions applicable to her must not be substantially less favourable than her current terms and conditions.



Cost of a pregnant pause

An employment tribunal decision reached last year also provides a valuable lesson in addressing capability issues arising in relation to a pregnant employee. In Evans v Lloyds TSB Asset Finance Division Limited (decided 30 May 2007, case number 1602666/2006) the tribunal found that Evans had been unlawfully discriminated against when her dismissal was in fact attributable to her pregnancy.



On 1 December 2005 she started employment as a car sales negotiator. After training she was subject to a three-month probationary period, with effect from January 2006. During January and February her line manager described her performance as 'great' and 'excellent'. In March she discovered she was pregnant. This caused her concern because of the possibility of cystic fibrosis (which had led to the termination of an earlier pregnancy). After a brief spell in hospital due to the pregnancy, she returned to work on 9 March and told her line manager and sales manager of the situation. She had a further six days off that month to undergo hospital tests.



She failed to reach her targets for the month of March and, as a result, her probationary period was extended by a month. She was shocked when, on 3 April, she was asked if she would continue with her pregnancy if the tests showed that her baby did not have cystic fibrosis. She replied that she would. During April she worked long hours to seek to achieve her sales targets but fell short by two sales. The probationary period was extended for two further months (when again she narrowly missed her targets) and on 3 July she was dismissed with pay in lieu of notice by reason of her failure to meet her targets. Her subsequent grievance was rejected. The investigating officer took the view that the employer had not been made sufficiently aware that Evans' pregnancy was high risk. It was thought necessary to carry out a risk assessment only once she had submitted her form in MATB1 (issued by a doctor or midwife), which she had not yet done. Evans brought a claim for sex discrimination.



The tribunal found that the employer was required to carry out a generic risk assessment without waiting to receive form MATB1, although it was not obliged to take relevant action until notified in writing. It was thought that such an assessment would probably have resulted in a reduction in her targets.



The decision in April 2006 to extend her probationary period was found to be on the grounds of pregnancy and not capability. Evans' claims for unfair pregnancy dismissal and sex discrimination were upheld and the tribunal concluded, on a provisional basis, that an injury to feelings award would fall within the middle band of the three bands established in the Vento case (£5,000 to £15,000).



Employers must be sensitive and cautious in their treatment of employees who are pregnant or undergoing IVF treatment and take full account of their unique circumstances.