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New legislation you need to know about

The 6th of April 2024 saw a change in employment laws regarding flexible working, maternity and paternity leave, fertility and family-forming. If you are in the HR world, take note of these important changes.

Flexible working

Fertility treatment and family-forming journeys can be physically and emotionally draining, and flexible working arrangements can make all the difference in helping people manage.

Below, you'll find the legislation changes around flexible working arrangements that are set to determine what people on fertility and family-forming journeys are entitled to.

• The new "Day 1" right - An employee can now request flexible working from day one of employment. Previously, employees only had the right to do this 26 weeks in to the job.
• An employer has to consult the employee before refusing the request for flexible working.
• Employees may make two flexible working requests (rather than one) in 12 months (but employers don't need to accept a new request if the first one is still being processed).
• Employees no longer need to set out the impact on the business or give suggestions for mitigating that impact as part of their flexible working request.
• A flexible working request must be processed within two (rather than three) months of receiving it, unless the parties agree otherwise.

These changes in the flexible working laws are significant to any person who is going through a health challenge or who has carer duties. This is a great step in the right direction.

Protection against redundancy

• If an employee has had a baby (following fertility treatment) or if they have used a surrogate to have their baby, the employee now has a right to be offered a suitable alternative if they are made redundant.
• This previously was only available to those who were pregnant, but has been extended to those returning from maternity leave, adoption leave, and statutory parental leave (if over 6 weeks). This protection extends to 18 months after the birth of the child.

Paternity leave

• Employees taking paternity leave can now extend the right to use their leave in the first year of the baby being born. Previously this was allowed in the first 56 days.
• Paternity leave can now be taken in two separate blocks. Previously paternity leave had to be taken in one block.
• The new correct notice period for specifying when the employee wants to take paternity leave in cases of birth is reduced from 15 weeks to 28 days before the Expected Week of Childbirth

Carers leave

• Employees in the UK (outside Northern Ireland )who have a dependant will be entitled to 1 week (the length of time they usually work over 7 days) of unpaid leave every 12 months.

As an HR professional, it is crucial to understand employee rights around entitlement and protection so you can provide your employees with the best care possible for them, in as clear a way as possible.

Existing employment rights around fertility challenges and family-forming journeys

At present, there are no specific statutory rights to take time off work to attend fertility treatment appointments. This is the case for all fertility treatments, including IVF or IUI. 

As a result of this, employees undergoing fertility treatment will typically have to take annual leave unless their employer offers unpaid time off. Employees are also not entitled to sick leave.

If an employee is going through IVF

Although there is no statutory right for employees to take time off to attend IVF appointments, there are laws and government guidelines in place that employers should be aware of:

• The Equality and Human Rights Commission Code of Practice recommends that employers treat requests for time off for IVF treatment “sympathetically.”
• If an employee becomes unwell from IVF treatment, this should be treated the same as any other medical appointment or sickness.
• Employees get pregnancy rights once the final part of the IVF process, call the embryo transfer, happens. These pregnancy rights give employees the right to “reasonable time off with full pay for pregnancy-related antenatal appointments.”

You have no obligation to tell your employer that you are pregnant until the 15th week before your baby is due, but keep in mind that they may be able to offer support if you do. For example, as soon as an employer knows you are pregnant, you are protected against unfair dismissal and unfair treatment related to your pregnancy, so there benefits to letting them know before you reach that 15th week mark!

If the embryo transfer was unsuccessful, employees are protected against pregnancy discrimination for two weeks after finding out, which might limit an employer in refusing requests for further appointments. Be sure to seek legal advice if you think you might be a victim of pregnancy discrimination.

Other fertility treatments

There is no special guidance for those undergoing IUI, but a 'protected period' starts as soon as a person becomes pregnant.

During this time, the pregnant person will be eligible for maternity leave or parental leave, the right to time off for antenatal appointments, legal protection from unfair treatment and unfair dismissal, and (for some) the right to maternity pay.

The same would apply to those undergoing Donor Insemination (DI) and Gamete Intra Fallopian Transfer (GIFT). 

We always recommend companies put a fertility policy in place so employees are clear on what support or adjustments they are entitled to.

Take a look at our guide on how to write a fertility policy.

Statutory adoption leave and pay

Statutory adoption leave lasts for up to 52 weeks (same as maternity leave). To be eligible, you must inform your employer and provide proof that you are adopting should they ask for it. Agency workers, freelancers, casual workers, and anyone adopting privately (where no adoption agency is involved), are not entitled to take leave for adoption appointments.

This database on the Adoption UK website provides a breakdown of adoption agencies in the UK.

Statutory adoption pay (90% of your average weekly earnings) is paid for 39 weeks and starts when you take leave. If you're having a child through surrogacy arrangements, you might be entitled to adoption leave, provided you apply for a parental order or an adoption order.

Pregnancy and maternity discrimination

Pregnancy and maternity discrimination in the UK refers to the unfair treatment of pregnant employees, or those who are on maternity leave. This type of discrimination can mean unfair dismissal, unfavourable treatment (particularly in relation to promotion or training), changes to working conditions without consultation, and any form of harassment related to pregnancy or maternity.

If an employee experiences discrimination related to pregnancy or maternity leave, they may have grounds for legal action against their employer. Be sure to seek legal advice if you think you have a strong case as you may be able to claim compensation through an employment tribunal (or Industrial Tribunal if you're based in Northern Ireland).

Get in touch with the Fertifa team!

Remember, going through fertility treatment can be incredibly difficult, especially in the absence of proper workplace support.

At Fertifa, we support every fertility journey, from egg freezing to embryo freezing to IVF. Through our personalised expert support, we provide our patients with the right care at the right time for them.

If you're looking to support your employees through fertility and family-forming journeys, get in touch with our team. We'd love to speak.