The Claimant was employed as a ‘Work Coach’ at a Job Centre run by the Respondent. She informed her then-manager that she may require some time off at short notice for IVF treatment. Some months later, the Claimant suffered a miscarriage and was absent from work for about 4 months.

A formal attendance review meeting was held to discuss how her return to work could be facilitated and another meeting was held to discuss her time off work on sickness absence. When she returned she explained the miscarriage and the fact that she was attending counselling. The Claimant referred to eight specific incidents which she argued amounted individually and cumulatively to direct discrimination and/or harassment. These included alleged comments made to her by her manager asking if she could cope with a second child and whether it was a good idea to have further IVF treatment. Further, she was refused leave to attend for further IVF treatment (the tribunal concluded that this amounted to harassment on the part of the claimant's supervisor). The tribunal found that both these incidents amounted to amounted to direct sex discrimination, as a man would not have been spoken to or treated in this manner. The Claimant was awarded over £24k in compensation, including £17k for injury to feelings, set towards the middle-high level of 'Vento' bands.

Practical Lessons

There is no statutory right for employees to take time off work to undergo investigations or treatment. Yet, at the same time, employers must deal with requests for time off for IVF treatment, and indeed any pregnancy-related absences, fairly and reasonably. Employers should treat medical appointments related to IVF and pregnancy the same as any other medical appointment under the terms and conditions of the contract of employment.

Crucially, female employees should be treated no less favourably than male employees, otherwise allegations of inequality of treatment could lead to a successful discrimination claim. If a company policy allows paid time off for certain treatments for men, women seeking IVF treatment and other pregnancy-related appointments must be equally accommodated.

Hearing judgement:
https://assets.publishing.service.gov.uk/media/5909dd8eed915d06b0000259/Ms_A_Ginger_v_Department_of_Work_and_Pensions_34019402015.pdf

Remedy judgement:
https://assets.publishing.service.gov.uk/media/5a2e601340f0b659d45200df/Ms_A_Ginger_v_DWP_3401940_-2015_REMEDY.pdf