# Infertility a Disability?????



## cherriepie (Nov 3, 2007)

Hi everyone

Was out having dinner with family and friends and was talking about my situation at work when someone said "Isn't infertility a disability?  Can't you sue them under the DDA?".  They went on to explain that they read somewhere that infertility has been viewed as a disability in the US since 1998 as it limits one or more major life activites (think they meant that creating life is THE most major life activity).  They said that there was specific reference to the reproductive system as a "body system" which may be physiologically impaired.  

Does anyone know if this applies in the UK?

On the one hand I think that if it doesn't then it should as it would provide some protection to couples dealing with infertility, particularly in the workplace and on the other I am not sure how I would feel about being given another "label".  What do you think?

Love Cherriepie

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## NatGamble (Mar 1, 2007)

Hi Cherripie

Interesting question.  I think it's definitely arguable, though I'm not aware that it has yet been argued under UK law, probably because our anti-discrimination/ human rights laws are still reasonably new.  There was a recent European case which gave rights to time off work for the 'advanced stages' of IVF - that was based on sex discrimination but it would be interesting to see from the case report whether disability discrimination was raised too - I'll ask Louise, our employment law guru.  

Personally, I wouldn't worry about it being another label, if it gives you a legal route to challenge an existing law which is unfair.  

Natalie
[email protected]
www.lesteraldridge.com


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## cherriepie (Nov 3, 2007)

Hi Natalie

Thank yoy for taking the time to reply to me.  It's a really complicated situation really as I work for a law firm myself.  

I had contacted ACAS in the beginning, the day after the ruling you mention came out, am assuming you are talking about the Mayr case.  When I mentioned this to my work they seemed a little concerned but they told me I couldn't use it as I had not had eggs transferred at the time they interviewed someone else for my position nor had I had them transferred when they took my job away from me 4 days before I started treatment when they had known that IVF was a possibility for around a year, without discussion, on the presumption that I may need time off for treatment.  Ironically, the stress of the whole thing caused me to have extremely high blood pressure and I was signed off anyway.

I'm not sure if it would help to have more details about the whole thing but I really do not know how to take this forward or whether I should at all.  I am just so annoyed at the way myself and others have been treated by employers and think we should have more protection.

Any advice you can give me is truly appreciated.  Have felt so alone with this.  I did approach another law firm in Dundee however I didn't hear anything back from them so presume they didn't want to get involved.

Many thanks!

Cherriepie


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## Louise Gibson (Mar 10, 2007)

Hi Cherriepie

Thank you for your post.  I am sorry that I have not been able to respond sooner. 

Unfortunately I think that the way that the UK legislation (based on EU legislation) regarding disability is drafted it would be very difficult to argue that infertility amounts to a disability (the definition of a disability under the UK legislation is someone who has or had a physical or mental impairment which has/had a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (long term would be at least 12 months)).  

However, if someone's infertility resulted from a disability (i.e. cancer) this individual could be protected under the disability legislation.  

If an individual is not protected by the disability legislation there is the potential for protection to be offered by the sex discrimination legislation, particularly in light of the Mayr case (which did not deal with the disability issue).  Although the Mayr case indicates that employees have protection from the earliest point they could be considered to be pregnant - it also clearly indicates that those undergoing fertility treatment have the potential to be protected under the sex discrimination legislation even before they are pregnant. 

If you would like me to consider your specific situation further please do not hesitate to email me direct with the details.  You should not delay in obtaining legal advice as there are very strict timeframes in which to bring tribunal claims. 

Kind regards

Louise Gibson
[email protected]


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## cherriepie (Nov 3, 2007)

Hi Louise

Thank you for your time and for coming back to me on this.  I thought that this may be the case with regard to the DDA in the UK.

I would very much have liked to have taken things further with my employer however I appreciate that with regard to having my jpob taken away from me the 3 month period has now passed.  I did try to get a Solicitor to help me with this and any possible claim however, as you will be aware, when taking on a new client Solicitors have to ensure that there is no conflict of interest and as soon as I mentioned the legal firm I work/worked for I was told they couldn't help me or did not hear anything further despite trying to contact them.  I could not even secure any advice from my local CAB as the solicitors who volunteer there also work for the same Firm as me.

It has been extremely frustrating to say the least and given other factors which have recently come to light I have just handed in my resignation today.  I kind of feel that everything has built up and I have been pushed out the door but in the end I had to try and do what was best for me although admittedly my financial situation will now be under great strain.  My DH was recently paid off within the 12 week period as "his head was not in due to my undergoing IVF".  

Out of interest, what would your fees be if I were able to pursue a claim?

Many thanks.

Kind regards
Cherriepie


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## Louise Gibson (Mar 10, 2007)

Dear Cherriepie

Thank you for your post.  I think it would be worth discussing your situation further.  As you have indicated you may be out of time to bring some claims, but others do have a 6 month time limit.  There may also be scope to complain of constructive unfair dismissal in relation to your resignation. 

These issues and costs are probably best to discuss off the message board.  Please can you email me direct and we can discuss this further?

I look forward to hearing from you. 

Kind regards

Louise Gibson
[email protected]


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