Pregnant pause

Sahota v Home Office and anor

Under the law, women who are pregnant or on maternity leave have certain statutory rights during the “protected period” (the date the woman tells her employer she is pregnant until the end of her leave). In Sahota v Home Office and anor, the Employment Appeal Tribunal (EAT) said that women undergoing IVF treatment could not claim the same rights except in certain, very limited, circumstances.

The union, PCS, instructed Thompsons to act on the claimant’s behalf.

Basic facts

Mrs Sahota worked for the Border and Immigration Agency. In January 2008, after a three-year posting in Paris, she started a new job in Folkestone, but continued to live in Paris where she had embarked on a course of IVF fertility treatment. The first implant in November 2007 failed. She tried again on 26 February 2008, but this failed on 17 March.

At a meeting on 27 January 2008, her new manager, Mr Pipkin, raised the issue of her IVF treatment informally with her, saying that getting pregnant was probably the most important thing in her life. He then asked her to attend another informal meeting on 2 February to discuss other sickness absences.

This was then due to be followed up by a formal meeting on 7 March but on 6 March, Mrs Sahota asked for leave starting the following day. Mr Pipkin agreed to the leave but went ahead with the meeting in her absence at which she was given a stage one warning.

Mrs Sahota appealed and in the course of gathering documentation for that appeal, it was noticed that she had made a number of apparently anomalous overtime claims. These subsequently turned out to have been made incorrectly rather than dishonestly.

She claimed that had she not been undergoing IVF treatment, she would not have been subjected to this series of detriments, contrary to the Sex Discrimination Act, (SDA).

Tribunal decision

The tribunal said that the protected period against pregnancy discrimination ran from the date the eggs were implanted (26 February) until two weeks after the date she was told it had failed (31 March). But was she protected before and after these dates?

The tribunal said she was not. It found that her various complaints (the remarks made by Mr Pipkin at the first meeting; the invitation to attend a meeting about her absences; the meeting on 7 March and the warning; the investigation of overtime claims) either did not amount to a detriment or, even if they did, they had not occurred because she was undergoing IVF treatment.

EAT decision

And the EAT agreed with the tribunal. It said that although it was directly discriminatory to treat a woman less favourably because of her pregnancy, it was not discriminatory if a male worker would have been treated the same way in relation to a gender specific illness.

The question, however, was whether the protection afforded by the law to pregnant employees also extended to women undergoing IVF treatment but who were not yet pregnant.

Relying on the decision of the European Court of Justice (ECJ) in Mayr v Backerei und Konditorei Gerhard Flocker OHG, the EAT ruled that infertility was a medical condition and IVF a form of medical treatment and should be treated as sickness absence in the normal way.

The only exception, it said, was the stage “between the follicular puncture and the immediate transfer of the in vitro fertilised ova into the uterus”. As only women can undergo the final stages of IVF treatment, it would be direct sex discrimination to dismiss or treat less favourably a worker because she was undergoing IVF.

The EAT therefore concluded that Mrs Sahota was only entitled to protection under the SDA if, as a result of undergoing IVF treatment, she had actually become pregnant or had been treated less favourably at an advanced stage of her treatment simply because she had received IVF.