Periods, Menopause and Employment

Amended January 30 2024 - The NHS suggests that studies show up to 90% of women suffer from pain during their period, and 14% of say that their pain is so severe that they are unable to go to work frequently. A survey of 2,000 women by the CIPD found that 69% of respondents had a negative experience in the workplace as a result of menstrual symptoms.

Periods and the law

Nabila Mallick, employment barrister at No5 Barristers' Chambers commented:

"While there is no specific protection in law, there are various provisions that indirectly protect women from discrimination or harassment relating to periods and the menstrual cycle. These include protections from disability discrimination where women have diagnosed medical conditions related to menstruation and protections against sexual harassment, such as where unwelcome comments are made in respect of menstruation."

Conditions related to menstruation include:

• endometriosis
• pre-menstrual dysphoric disorder (PMDD)
• dysmenorrhea (painful menstrual periods)
• abnormal uterine bleeding (AUB)

According to Nabila Mallick, depending on the severity of symptoms from these conditions, women may be protected from discrimination on the grounds of disability under the Equality Act 2010. She said:

"The key to ensuring protection on grounds of disability is to obtain a diagnosis of the condition and a record of the reported symptoms. Where a disability can be demonstrated, women can obtain protection under the Equality Act 2010 against both direct and indirect discrimination, as well as harassment and victimisation.

"Arguably, a case could be made for indirect discrimination on the grounds of sex where reasonable accommodation is not made, in the implementation of the sickness absence policy triggers. After all the symptoms of menstruation, which obviously only affect biological women, may result in greater incidences of sickness absence and thereby increasing the risk of sickness absence capability triggers, for women in comparison to men.

"However, this is not a straightforward claim, and this is not yet a challenge that has been brought. Many employers have sickness absence policies, which allow for an exercise of reasonable adjustments outside the statutory duty towards those with disabilities. I would suggest that it would be a matter of good practice to specify in any sickness absence policy that the employer recognises that some women can suffer difficult menstrual symptoms and in those circumstances the employer will discuss what steps it can reasonably take to overcome the obstacles presented to an effective working day, for instance by allowing home working.

"Also, it may be advisable for employers to avoid any potential claims by making specific provision in the workplace policies for how difficult symptoms associated with the menstruation are to be addressed. Doing so would send a clear message to female employees that they do not need to suffer in silence."

Introducing period leave: What could it mean for your company?

Here are just a few things to consider before making the decision about whether period leave is something that could work for your company. How could period leave affect your business? How do you continue to promote equality in the workplace while simultaneously meeting the needs of those who suffer from clear gender based ailments? Much like sick leave, they would still be entitled to pay and although no such thing has been rolled out in the UK before (at least on a large scale) other multi-national companies such as Nike have used it in the past. In fact, in Japan period leave has been available to working women for several decades.

What are the benefits?

Advocates of period leave argue that allowing women to take time off under the specific label of period pain will help reduce the stigma surround women's menstrual cycles. As it stands, it is still a fairly taboo subject and something that many women feel uncomfortable talking about, particularly within an employment setting. But offering this policy means being more honest and open about the female body which will ideally reduce the shame that can sometimes go with it.

Are there any drawbacks?

Some people have criticised the ethics of period leave. One report from Japan, where period leave has been available for almost seventy years, suggests that business women still don't feel comfortable taking it because 'it is basically broadcasting to the entire office which days of the month you have your period.' There were concerns that this could lead to sexual harassment and showing signs of weakness when 'trying to prove yourself in a man's world.'

Of course others may argue that the policy could be abused and isn't fair on men (or women who don't menstruate) within the same working environment. And since many women who suffer from exceptionally painful periods often have underlying medical conditions such as endometriosis or pelvic inflammatory disease, is the label 'period leave' really an accurate one anyway?

Menopause in the Workplace

With reports suggesting that 3.5 million over the age of 50 work, this means a lot of women could also be struggling with symptoms of the menopause in the workplace too. Unlike period pain, these symptoms can be constant and on average last for 4 years per woman! While there is currently no legislation in place regarding menopause and MPs recently rejected making menopause a protected characteristic, employment law does state that employers are responsible for the health and wellbeing of their staff and so supporting women through such a dramatic bodily change that can cause a range of physical, mental and emotional symptoms is important. According to Caroline Jennings, employment and discrimination barrister at No5 Barristers’ Chambers:

"Although this news might be upsetting to hear, women need to know that the law is in their favour and is not abandoning them. Despite it not being explicitly provided for as a protected characteristic in the Equality Act 2010, discrimination by reason of menopause is covered by existing protected traits. The key issue we face as a nation is knowledge of legal rights and how to advocate for oneself on this basis.

"There are a number of existing protected characteristics within the Act that can be used in circumstances of discrimination relating to the menopause. Sex and Disability are the main two. Many people do not know that as the menopause can have a substantial long-term adverse effect on someone’s ability to perform everyday tasks, so it is frequently classed as a disability for the purpose of employment law. This same category would protect men with long-term medical conditions with a similar level of impact - thereby avoiding any suggestion of inequality of protection within the workplace.

"Although the law currently protects against discrimination due to the menopause, it’s up to businesses - both big and small - to ensure that they make the workplace as suitable as possible. This includes providing reasonable adjustments to accommodate symptoms. With 59% of working women between 45 and 55 saying hot flushes and insomnia have a negative impact on them at work, accommodations such as flexible hours and a more relaxed dress code can have a big impact (Women’s Health Strategy for England).

"The difficulty within ‘working Britain’ is the stigma and lack of education that has historically surrounded menopause. The law is there to protect women, but they often do not know their rights and even if they do, they may be embarrassed to speak up for themselves. Nine out of 10 women feel unable to talk to their manager regarding menopause due to feeling like it’s a taboo subject.

"Removal of stigma and normalisation is key to progress in this field. Many large employers, including the NHS, have introduced ‘ menopause champions’ and training to create a positive support network and increase awareness. Having a designated person to talk to means employees will have someone on hand to offer vital support to those experiencing perimenopause and menopause symptoms as well as helping them navigate their jobs during this time. Not all businesses can provide this, but the hope is that as general awareness increases, women will feel more able to advocate for themselves.

"Even though the Women and Equalities committee report did not have the outcome many had hoped for, people need to know that legislation which protects them in these circumstances is already there and is readily available through a quick internet search. If you are facing discrimination at work due to the menopause, the best course of action is to contact a lawyer who can help walk you through your options."

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