Menstruation: Is period pain a disability?

Many men and women still view menstruation as a taboo topic and feel uncomfortable talking about periods, even though they affect 51% of the UK population at some point in their life. Natalie Taylor looks at whether period pain can constitute a disability and at ways employers can support women with more severe symptoms.

A 2017 YouGov survey found that 91% of women experience period pain at some point and 57% say this has adversely affected their ability to work. Despite this fact, many choose to suffer in silence.

Over the past 40 years, there has been a significant rise in female employment, with statistics currently showing 15.1 million women in work in the UK. As such, it is high time for employers to take “that time of the month” seriously, to speak about it openly and to consider how they can support and assist employees.

Is period pain a disability?

The Equality Act 2010 covers nine protected characteristics and period pain is not currently one of them, although disability is.

In the recent case of Davies v Scottish Courts and Tribunal Service, the employment tribunal found that the physical effects of menopause may amount to a disability if the effects are long term, substantial and affect the person’s ability to carry out normal day-to-day activities.

In Ms Davies case, she suffered from heavy bleeding, dizziness and poor concentration, symptoms which could also apply to periods. She was awarded £19,000 in compensation. This is the first reported case which reviewed so called “taboo” issues in line with disability discrimination law. It also suggests that women may be more willing to complain if they feel they have been treated unfairly.

Arguably there is a key difference between period pain and menopause symptoms. Period pain symptoms will usually only occur once a month and typically only for a few days, whereas menopause is a process that occurs over a longer period of time. Could period pain amount to a disability? This point has not yet been tested in case law but it is likely to be case. It will be fact dependent and the severity and frequency of the symptoms will be critical.

Even if period pain does not amount to a disability for all women, it is nevertheless advisable that employers take period pain seriously and support and assist their employees.

Employers need to break down the existing prejudices surrounding periods. Periods and the associated pain are not a taboo topic as they are natural, regular and normal.

Be reasonable…

Employers should be reasonable when addressing frequent, short-term sickness absence. If there is a pattern which may indicate extreme symptoms of period pain, such as monthly absence for one or two days, employers need to take this into consideration instead of operating blanket absence trigger points.

Instead, employers need to attempt to understand and explore the underlying issues and be reasonable before commencing a formal disciplinary procedure.

…be flexible…

Periods will affect employees in different ways and to different degrees. Some women may need immediate access to a toilet because of a heavy flow or to a hot water bottle or over-the-counter medication to soothe cramps. One way in which employers can show their support and create a positive working environment is to be flexible and consider an employee’s request to occasionally work remotely.

While this may not be possible for every job, employers should consider how they can accommodate flexible working for one to two days a month if necessary. Employers should also not have a blanket ban regarding flexible working requests to guarantee an open and transparent approach.

…and be supportive…

Employers should be supportive, rather than judgmental. They can offer assistance, for example by allowing an employee to bring a hot water bottle into work if that helps with pain, or exploring any other way to support the employee.

Any adjustments would of course need to be considered from a health and safety perspective relevant to the respective workplace. Open and transparent dialogue should be encouraged and employers can be creative with potential solutions. However, if the employee feels uncomfortable speaking about their period pain, this should also be respected.

…but not too supportive

Certain Asian countries have gone further by introducing “period leave” policies. This is certainly a unique approach, but not necessarily helpful. These policies have been criticised as reinforcing negative gender stereotypes of female workers and periods. A potential consequence of these policies may be that employers are deterred or discouraged from hiring women, which in itself would be direct discrimination on the grounds of sex. It is possible that a “one size fits them all” approach may offend and backfire.

A positive and non-judgmental attitude towards topics which have historically been seen as “taboo” will in turn create a positive and more productive working environment and encourage women to speak more openly about “that time of the month”.

Natalie Taylor

About Natalie Taylor

Natalie Taylor is a solicitor in the London employment team at Irwin Mitchell.
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