As more and more organisations continue to introduce menopause support into their workplaces, we are also seeing a rise in conversations about menstrual health at work.
Indeed, these are important conversations to have and responsible employers will consider introducing support in this arena, too.
What does research tell us?
A YouGov survey in 2022 found that as many as a quarter of respondents experienced bad period pain which affected their ability to work. But just 11% who had taken time off had revealed the reason to their employer – showing this is still something of a stigma which would not be positively received.
While many said they would feel more comfortable talking to a female, others cited issues with female bosses not being sympathetic if they hadn’t experienced similar issues. There is still a lot of education needed.
A 2019 study showed that we’re losing 8.4 productive days per person a year for menstrual symptoms, costing the economy millions. A lot of employers are now giving menopause as an absence code for menopause in their data. It would be good progress if we could extend this out to include menstruation.
Period charity Bloody Good Period reported that in their 2021 survey 73% of respondents said they’d struggled to do their work in the way they’d wanted because of their period.
Clearly there is room for improvement in this area to help workers feel more supported at work.
But what are the duties of the employer?
In terms of employment law, menstruation is much like menopause in that there’s no specific right for paid leave for menstrual symptoms, so employees must rely on sick pay provision. Spain has recently introduced a right to paid leave, and this is a potential area for reform in the UK. We are seeing some employers voluntarily offering this, which is definitely an advancement.
Menstruation and menstrual health issues, while not a protected characteristic in themselves, are protected under the Equality Act 2010.
If a worker is put at a disadvantage and treated less favourably because of their menstruation symptoms, that could relate to the protected characteristics of sex, disability, gender reassignment or a combination of these.
It’s clear that painful menstruation and menstrual health conditions such as endometriosis, adenomyosis or polycystic ovary syndrome (PCOS) can present severe symptoms.
These health conditions can amount to a disability if they meet the statutory test:
- If they are a physical or mental impairment
- The impairment has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities
Case law
We are starting to see more tribunals being brought on the basis of discrimination relating to menstrual health. These include:
Odogwu v Surrey County Council [2023]
Here, the claimant suffered anaemia linked to heavy periods, which was causing heart palpitations. She was unable to leave the house for 2-3 days due to risk of fainting and unable to drive or walk long distances without a break due to risk of leakages.
This case has been heard at a preliminary hearing so far, in which the anaemia was classed as a standalone disability. It will now move to a full hearing to consider whether she has been discriminated against on the grounds of this disability.
Gare v Oakdale Care Homes No.2 Limited [2023]
In this tribunal case, the claimant had had some periods of absence due to her endometriosis and its associated issues, and this resulted in her dismissal.
The tribunal found that she was the victim of unlawful discrimination due to the dismissal arising in response to her disability, endometriosis. Her employer had claimed that they wanted to achieve a ‘legitimate aim’ of safe staffing levels, but since her dismissal had not recruited to replace her.
She had been upfront about her medical condition, and the tribunal found details regarding her risk assessment form were confused and had not been followed up.
Douglas v The Clancy Group of Companies [2021]
The claimant in this case suffered with irregular and painful menstruation, experiencing discomfort, nausea and feeling faint. She struggled with severe pain in her pelvis, back and legs and suffers with fatigue. Occasionally, she would struggle to wash or eat. She was prescribed medication for these issues.
She brought the case against her employers for her dismissal as an apprentice due to a few instances of poor timekeeping and a period of absence due to her menstrual issues. It was found in her favour and she was awarded over £15,000.
All of these cases show how the Equality Act 2010 does provide protection in instances where employers are not fulfilling their obligations. This, however, should not be the incentive for improving workplace practices – these are areas that responsible employers would reasonably be looking at regardless of compliance with the law.
What support could employers offer?
There are lots of things employers can do, some examples include:
- Giving employees the right to paid menstrual leave
- Reviewing sickness absence and other policies so they specifically address menstrual health – these could include flexible working, dignity at work and other wellbeing policies and guidance.
- Actively encouraging discussions around menstrual health so employees feel confident they can ask for the support they need.
- Giving employees time off for medical appointments and encourage regular breaks.
- Check that your facilities are accessible and appropriate – this includes remote or offsite facilities, and where people work from home. Some employers have started using a map of toilets for people out on the road or in the community, which is especially useful for workers who might be new to the area or role.
- Offering quiet recovery spaces for time out.
- Consider offering free period products that are easily accessible. We’ve also seen some good examples of employers offering things like black leggings or cardigans in care kits. While employers, in particular small businesses, might not have huge resources for this, it’s accepted these products would be used occasionally or for emergencies, not as a replacement for the employee to fund their own period products.
- Making sure information is easy to access, either on your intranet, through staff support services, wellbeing chats or informal support groups. Case studies and sharing of information is one of the best ways to encourage employees to speak up and seek the support they need in order to carry out their role.
It’s about consideration and care – what works for one organisation might not work so well for another. While menstruation might not yet be a protected characteristic, the fact that it is covered by the Equality Act 2010 is a reminder to employers that it’s not to be disregarded.
