In celebration of National Fertility Week 2019, we ask our Fertility specialists to answer your most asked questions about all things Fertility Law. Today we are talking about what happens at work if you are undergoing fertility treatment. We speak to Employment Partner Caroline Carr about the top considerations.
Q: I’m about to undergo IVF, am I entitled to time off to do so?
There is no statutory right to time off for IVF treatment (unless it can be brought within the definition of antenatal care). However, once pregnant, a woman undergoing IVF treatment has the same rights as any other woman who is pregnant. If the IVF is unsuccessful, the protected period ends 2 weeks after the date the woman is informed that implantation was not successful.
Q: I’m becoming a parent via surrogacy, am I entitled to maternity leave?
Women whose babies are born via surrogates are not currently entitled to maternity leave. Parents having a child via surrogacy are entitled to unpaid time off for two antenatal appointments (up to a maximum of 6.5 hours during working hours on each occasion), a period of adoption and paternity leave (with the parents choosing which of them takes each right) and shared parental leave. To be entitled the parents must apply, or intend to apply, for a Parental Order.
Q: I have agreed to be a surrogate for my friends, am I entitled to maternity leave?
As a surrogate, you will be entitled to take full statutory maternity leave and pay, regardless of whether or not you continue to have contact with the child following the birth.
Q: Once the baby is here I think I would like to go part-time. Do I have a right to that?
Many workers find that flexible working helps with family commitments, and reduces the time, costs and stress of commuting. All employees who have 26 weeks’ service have a statutory right to request to work flexibly. However, this does not give an employee an absolute right to work flexibly. Therefore, if an employer refuses an application, an Employment Tribunal cannot force an employer to accept the flexible working practice. The right is for reasonable consideration of the flexible working request. While there is no absolute right to work flexibly, a refusal of a flexible working request could potentially be discriminatory if it is related to sex or maternity.
Q: I have been dismissed by my employer whilst I am pregnant, what do I do?
Dismissing an employee because they are pregnant (or for a reason connected with pregnancy or childbirth), or because they are on maternity, adoption, paternity, shared parental or unpaid parental leave, or have exercised their right to time off to attend antenatal or adoption appointments is automatically unfair. Employees on leave also have a right to return to work and failure to allow an employee to return will amount to unfair dismissal unless the employer can justify its actions. If this has happened to you then you will want to make a claim for unfair dismissal against your employer. We can assist you with this and provide an initial fixed fee appointment to discuss your options and prospects.
The top takeaway when using any form of assisted conception is to get legal advice before you embark on your journey so that you know exactly where you stand. This helps you to avoid any pitfalls and let you focus on the exciting part, becoming a parent!
If you have any questions about all things fertility law, get in touch with BTO at our Edinburgh office on 0131 222 2959 or Glasgow office on 0141 225 4848.
Caroline Carr heads up BTO’s employment team of six employment lawyers which provides “excellent service from general advice to tribunal representation” (The Legal 500). She has been accredited by the Law Society of Scotland as a Specialist in Employment Law since 2001. For further info on the employment law services visit: www.btoemploymentlaw.co.uk
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#FertilityWeek: Becoming Parents via Surrogacy – Your Questions Answered
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#FertilityWeek: Becoming Parents as a Male Same-Sex Couple – Your Questions Answered
