Fertility and the workplace

Undergoing fertility treatment can be a costly and emotional journey for parents and juggling finances and work at the same time can be difficult.

As fertility employment lawyers we are pleased to have witnessed an increasing number of employers contributing towards the costs of or assisting with fertility treatments for staff and offering flexibility around the need for time off. Fertility issues can impact wellbeing and employee stress levels which can, of course, then have a connection to their workplace performance and overall mental health. In our opinion, post Covid employers are more mindful of the bigger picture for their employees and of how best to assist with their overall welfare.

More and more companies are therefore offering more holistic incentives which assist with different aspects of life. Tech company LinkedIn was among the first large companies to offer UK staff fertility benefits in 2019. Goldman Sachs has a Pathways to Parenthood scheme, which covers the costs of treatments, included donated eggs, with a sum of up to £15,500. Fertility support has expanded as an employee incentive and here we also look at how leave and pay works when a child is conceived via surrogacy.

Your employment rights as an intended parent

An intended parent refers to anyone who intends to become a parent using third-party reproduction, including egg, sperm or embryo donation and surrogacy arrangements, for example, because of infertility or being part of a same-sex couple.

 Leave entitlement: Adoption leave

Intended parents cannot take maternity leave as the surrogate would, but they can use Adoption Leave. Statutory Adoption Leave can last for up to 52 weeks which is the same period as statutory maternity leave. In order to take adoption leave, the following is required. The person:

 Must be legally classified as an employee

 Must tell the employer and give them the correct notice

 Give proof of surrogacy, if your employer asks you for it.

The employer has to be notified no later than the 15th week before the baby is due that the employee intends to take adoption leave.  The expected week of childbirth and the requested date of leave starting needs to be confirmed by the employee. Best practice is to put this in writing. The employer then has to reply in writing within 28 days and confirm the dates the leave will start from and end.

There is no requirement to prove the surrogacy for adoption leave, unless the employer asks for proof, and if they do then confirmation in writing that you will apply for a Parental Order within six months of the child’s birth will be sufficient.

 Time off for antenatal appointments

Intended parents can get unpaid time off to attend two antenatal appointments with the person giving birth. Only one of the intended parents can accompany the person giving birth to the antenatal appointments.

If you choose to take time off during working hours, you have the right to take up to six and a half hours off work per appointment. Your employer cannot ask for proof of the appointment. They might ask for a written declaration, which you must sign, to confirm that you’re taking time off to go to an antenatal appointment.

 Pay whilst on leave

Intended parents cannot rely on Statutory Maternity Pay, but Adoption Pay can be provided. This is also 39 weeks in length like SMP is and it starts on the first day of adoption leave. The first six weeks is 90% of weekly pay, reducing down for the remaining 33 weeks to £156.66 a week (£172.48 from 2nd April 2023) or 90% of average weekly pay (whichever is the lowest.)

To qualify for Statutory Adoption Pay, intended parents must:

 Be legally classified as an employee

 have been continuously employed by the same employer for at least 26 weeks before the qualifying week

 earn at least £123 a week, before tax, in the eight weeks before the qualifying week (15 weeks back from the date that the baby is due)

 tell the employer and give them the correct notice

 give proof of the surrogacy, if the employer asks for it

 Unifying leave and pay

Broadly, an Intended Parent’s rights reflect the statutory maternity position when it comes to leave and pay. Companies that are using fertility treatments as incentives may also want to consider enhancing these rights alongside any benefits related to the treatment.

Workplace policies on this, similarly to maternity rights, will vary but it follows that, in offering assistance with fertility treatment, the employer could then offer a suitable, enhanced leave package to accompany it. This active acknowledgment from employers of the impact fertility issues can have is a really positive step in the overall shift towards prioritising the wellbeing of employees. It shows an acknowledgment of the importance of family life for individuals in the workplace, which is a wider welfare view to be welcomed and many more employers may follow suit.

What could employers be doing…

These are some things to consider:

• Adapt your policies to provide a more holistic offering than the statutory provision, offer flexible working and understand why these matter should attract talent, retain committed and loyal staff and help parents progress their careers.
• Understand that we are all different, that we have different needs and agendas, which change overtime and that not all benefits or issues affect us the same way at the same time so some discretion and flexibility is needed.
• Clear transparent policies will help employers and employees navigate matters so each party is considered and feels supported.

Staff incentives are not just about salaries and bonuses, but flexibility and understanding and ‘ a thank you’ can go a long way whether that takes the form of commission, paid for social events, team bonding days or more practical help such as the right to swap leave days, working from home, healthcare, counselling and additional time off for parents. The more an employer thinks laterally the better the working experience for each and every employee.

A City Law Firm

We are modern, innovative lawyers so we too have looked at ways to support our staff. Laura Jennings, Director and Head of Family and Employment, oversees many talks and webinars on employee wellbeing and welfare, menopause , fertility, pregnancy and issues that arise during divorce. She has been overseeing staff wellbeing since she was appointed and is a confidante, advisor and supporter of all employees undergoing life-changing events or health issues.

She is currently overseeing all policy updates and amendments to offer more protection and support to our staff. As a personal law firm each person is addressed on a case by case basis, given people’s different circumstances. Some with take different maternity/paternity leave and want to return on different terms. Some need fully remote working and others hybrid; some need support for breastfeeding and expressing; others need compressed hours or permission to undertake other work or training. We cover it all.

The firm offers hybrid and flexible working and has done so since well before Covid 19, as it has been a remote-enabled/paperless law firm for many years. However, what many do not know is that. whilst parents may want flexible hours, they also consider the needs of others too.

Staff get enhanced leave as the firm closes at Christmas and all post-probation staff are offered this leave without any deduction from their contractual holidays.

*Karen Holden is founder of A City Law Firm.

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