In the case of Sahota v The Home Office the Employment Appeals Tribunal considered the extent of protection from sex discrimination for women undertaking in vitro fertilisation (IVF) treatment.
It considered whether IVF treatment was to be treated as equivalent to pregnancy for the purposes of the Sex Discrimination Act, in that a comparator does not need to be identified. It found that a pregnancy by virtue of IVF is no different from pregnancy.
The EAT found that a woman undergoing IVF treatment is to be regarded as pregnant from the period of implantation of the fertilised ova until the end of the 14 day protected period.
Therefore a woman will be protected against pregnancy discrimination 14 days after the date upon which the pregnancy ends or fails.
The EAT further confirmed that a female employee would be protected prior to implantation during the 'advanced stage', the period between the follicular puncture and the immediate transfer of the in vitro fertilised ova into the uterus, under the Equal Treatment Directive.
It would be direct sex discrimination to subject a female to less favourable treatment on the ground that she is receiving IVF treatment during the ‘advanced stage'. The EAT did not accept that protection for female employees should be extended to cover the entire duration of the treatment.
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