Disability History Month runs from 16 November to 16 December 2022.  For our second week of updates, we focus on menstruation leave.

Recently, reports suggest an increase in the number of companies offering menstruation leave. Whilst for some individuals menstruation causes little discomfort, for others (particularly those suffering from conditions such as endometriosis, which is thought to affect up to 10% of individuals who menstruate), the time of the month can be debilitating and create extreme difficulties within the workplace. Some of the symptoms can include cramps, back aches, vomiting and migraines. A 2021 survey conducted by the period charity, Bloody Good Period, found that 73% of respondents reported that they struggled to do their work in the way they wanted to because of their period. However, because individuals experiencing menstruation tend to see this as a way of life, as opposed to a sickness, there may be a reluctance to request time off work, even where immense pain is being experienced.

Whilst menstrual leave has existed for a number of years in countries such as Japan and Indonesia, it remains rare in other parts of the world, such as the United Kingdom. Results from a 2021 survey from the Victorian Women's Trust and Circle Inn (an HR software provider based in Australia), found that 70% of participants said they did not feel comfortable talking to their managers about how they could help. Currently, Spain is proposing to pass a new law which would offer those who experience severe period pain to take three days of sick leave a month, with the potential for this to be increased to up to five days in exceptional cases (with provision of a doctors note). Applicable employees would receive statutory sick pay for their time away from work.  

Topics of this nature have become a subject of increasing discussion, with more companies recognising the support required in the workplace for employees suffering from the menopause and issues arising from infertility. There appears to be a new focus aimed at reducing stigma around these matters and creating an open environment in the workplace where employees can feel supported in raising issues which have the potential to affect their ability to carry out their roles. As there appears to have been a shift in attitudes towards employers introducing menopause policies and support helplines, could a menstrual leave policy be the next step?

In assessing what they can do to support those employees whose ability to work is impacted by menstruation, employers are advised to:

• raise awareness and run training. Along with other issues such as menopause and infertility, the aim is to break stigma and ensure that employees feel comfortable talking about these issues. A study by Initial Washroom Hygiene found that 32% of men thought that it was "unprofessional" to talk about periods at work. This is indicative of the fact that there is still room for drastic improvement;
• consider consulting with employees to determine the response to putting a specific menstrual leave policy and entitlement in place and consider whether the implications of menstruation can be appropriately dealt with under the employer's current sickness absence policy. For example, it may be more useful to introduce a specific mention of menstruation into the policy if the company does not wish to introduce a standalone menstrual leave policy;
• if the company does not wish to have a specific  menstrual leave policy, consideration should be given to what else may be appropriate e.g. flexible working and the ability to work from home where symptoms are having a negative impact on the employee. It may also be helpful to consider engaging Occupational Health, where appropriate, and discussing whether any reasonable adjustments should be made; and
• ensure that the language is inclusive to include non-binary and trans individuals.

From a legal perspective, as discussed in our article from last week, shared by my colleagues, Rhona Wallace and Kelly Brown, recent case law has found that menopause related symptoms can amount to a disability in some circumstances, meaning that it is possible that individuals who suffer extreme side effects of menstruation may be able to establish that they are disabled where they meet the test in section 6 of the Equality Act 2010 (i.e. that their symptoms are long term, and that the adverse impact on their ability to carry out normal day to day activities is substantial).

Whilst there is no current legislation that entitles an individual to time off during menstruation, employers should be alert to the risk that disciplining an employee for absence or initiating capability proceedings could substantiate a finding of discrimination in the Employment Tribunal.