Will an employee who takes time off for fertility treatment be entitled to statutory or contractual sick pay?

Fertility treatment is not a "deemed incapacity" for statutory sick pay purposes. However, the treatment can affect people in different ways. An employee may well be ill due to the treatment and signed off by a doctor, either through the physical effects or, for example, through depression or stress. If this is the case, the employer must treat this like sickness absence for any other reason and deal with the employee's entitlement to statutory sick pay and any contractual sick pay in accordance with its normal rules.

There is no statutory right for an employee to receive time off, with or without pay, to undertake a course of fertility treatment. However, for the purpose of entitlement to employment rights, a woman undergoing IVF is deemed to be pregnant from the point of implantation of fertilised ova, until it is determined otherwise (a pregnancy test is usually taken two weeks after implantation to determine whether or not the treatment has been successful). She will therefore be protected from pregnancy and maternity discrimination and will have the right to time off for antenatal care from this point.

Employers must state in the written particulars of employment (s.1 of the Employment Rights Act 1996) whether or not they offer contractual sick pay and, if so, on what terms. It is advisable to include the terms in a separate sickness policy, which should cover the majority of eventualities, including fertility treatment. This will then form part of the contractual arrangement determining whether and, if so, how much contractual sick pay is payable to an employee.