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Fertility in the workplace – to freeze or not to freeze

Following Apple and Facebook’s announcement last week to offer their US female employees the benefit of cryopreservation and egg storage, we are all wondering if this trend will make it across the pond. cryopreservation

There has been much debate over the ethics and practicalities of this benefit. Some believe it is a cynical attempt by big corporates to encourage women to delay having children and others praise it as an innovative pro- choice step. Whatever your stance on the issue, it certainly raises some interesting legal issues.

How would this work in practice?

The estimated cost of egg extraction and cryopreservation is in the region of £13,000. With the high financial outlay involved, employers will be keen to protect the investment they have made and would be wise to seek some protection in the event of an employee’s early departure.

 

Having a mechanism in place that allows an employer to claw back at least some of the cost of the treatment in certain situations might be an option. Funding for the treatment could also be provided in the form of a company loan which is only repayable if the employee leaves within a specified period after the treatment. This is similar to the approach already taken by many employers in relation to enhanced maternity pay. In addition, the ongoing storage costs of the embryo should not be forgotten and it will be important to have clear contractual arrangements in place that pass this continuing cost on to the departing employee.

Discrimination Pitfalls

There is a risk that this type of benefit could be viewed negatively by the workforce – potentially reinforcing a perceived message that a woman’s career progression is hindered by having children. Sceptics will also argue that this type of benefit might lead to employers dictating when female employees should be choosing motherhood through the backdoor. And whilst this benefit may give female employees greater choice over when to have children, it is perhaps enhanced maternity and childcare benefits which, arguably, have a more lasting impact on a woman’s ability to continue her career progression. If the intention behind the benefit is to help women avoid having to choose between motherhood and their careers, an employer would be well advised to also offer maternity and childcare benefits that help women continue with their careers, regardless of when they decide to have children.

With shared parental leave coming into force in the UK next year, the government is looking to encourage a more equal sharing of childcare responsibilities between parents. If a greater proportion of men decide to take time out from their careers for childcare, they might begrudge this type of enhanced and costly benefit being offered to women. Male employees might argue that the benefit should also be made available to their partners, whether or not they work for that particular employer, so they also have a greater level of choice available to them as to when they take a career break for childcare. Of course, it is biologically impossible to offer exactly the same benefit to a man, but making sure that any childcare benefits apply equally between the sexes should help redress the balance and avoid discrimination.

At the moment, public opinion seems to suggest that this unusual benefit is not one which would be welcomed in the UK. It has been reported that there is only a 15% chance of a frozen egg being successfully fertilised. There is a concern that female staff might feel pressurised by employers into gambling on a future which has such low prospects of ever materialising. On the other hand, if the offer to freeze eggs is accompanied by comprehensive information from the employer and provider, at least a female employee can make an informed decision about whether to proceed.

With a number of US banks and law firms expected to follow the tech giants’ lead in the near future, only time will tell if this scheme will make it over the pond.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further