Fri 08 Jul 2022

Menstrual health in the workplace - is more leave really the answer?

As Spain moves towards the provision of three days paid leave per month for employees with severe period pain, is that the right way forward for the UK.

Women's health is, thankfully, starting to be taken seriously in the UK workplace, and not just in relation to maternity leave or childcare issues.  Over the last 12 months or so the impact that menopause has on women, as well as other marginalised genders, and their careers has been highlighted in a way never seen before.  There is undoubtedly a long way to go, but employers are beginning to understand the extent to which menopause can impact on an individual's ability to do their job (and indeed their quality of life generally) with the taboo surrounding it starting to be removed.  That still leaves one major aspect of people's lives from the point they enter the workforce until they reach menopause being widely ignored - menstrual health.

Perhaps encouraged by the position in Spain, campaigners and charities in the UK are now calling for "menstrual leave" and better workplace support for menstruating employees with severe period pain. According to the charity "Bloody Good Period", 73% of people who menstruate have struggled to complete their work due to their periods, the majority of those citing pain as the cause. Currently in the UK, employees require to use their usual sick leave (either statutory or enhanced company leave and pay) for time off work when they cannot do their job because of the impact of their periods whether this is due to pain, heavy bleeding or other effects. 

As with the menopause, the taboo needs to be removed around menstrual health, employers need to be open to discussion about what employees may need to support them in the workplace and build a greater understanding of the difficulties faced by those suffering from severe period pain, heavy bleeding or other issues. In particular, any outdated view that period pain is "just" period pain, and those who menstruate just need to put up with it, must be addressed. Employers also need to be aware that severe period pain or heavy bleeding could amount to a disability under the Equality Act 2010 if the severity and frequency of symptoms prevent a menstruating employee undertaking normal day-to-day activities. While that may result in an employer needing to consider time off work as a reasonable adjustment for an individual, would the introduction of a statutory right to menstrual leave really be the best thing for employees in the workplace?

Particularly, employees of childbearing age are already fighting an uphill battle with some less scrupulous employers who may chose not to employ them on the assumption that at some point they will make use of their right to take maternity leave. If those employers perceive that they may also need to give additional paid time off on a monthly basis then the introduction of such leave may cause more problems than it solves? It should also be acknowledged that some employees may abuse a right to leave, particularly when severe period pain is difficult to evidence and straight forward to fake - so even reasonable employers may have some concerns around it.

Spain is considering a right to paid leave that will be funded by the state not employers. A doctor's note will be required to access the right. Given the difficulty often encountered in seeing a GP in the UK, obtaining a doctor's note on the particular days it is needed could cause problems.  While the right in Spain is not expected to apply to those who only experience mild discomfort, who will judge when mild pain becomes medium pain, and medium pain becomes severe pain?  And will the severe pain need to be constant or will intermittent pain throughout the day qualify?  Similarly, if the leave was to be limited to those with a diagnosis of conditions such as endometriosis, adenomyosis, fibroids or similar, then arguably it stops being "menstrual leave" and becomes, instead, a leave for women with different, albeit related, underlying conditions. Practical difficulties abound and could lead to bad feeling and grievances if employers struggle to deal consistently with a problem that affects people in many different ways.

In Spain it is estimated that around 75% of people who have periods suffer from severe period pain. Around the world that figure is estimated as being between 65 to 90%. On that basis, in Spain, the majority of employees in the workplace of childbearing age could be entitled to an additional three days paid leave per month (and indeed it is proposed that the leave could be increased to five days for more severe cases). That is a not an inconsiderable proportion of the working month.  Irrespective of whether the state pays for the leave or not, the employer carries the burden of loss of productivity - will they be willing to do that or will they look for young men for their workforce instead?

While it seems wrong to consider not providing a leave such as this on the basis it may be detrimental to women in general because of some unscrupulous employers, statistics from the charity, Pregnant then Screwed, indicate that 54,000 women a year lose their job simply for getting pregnant.  Another 390,000 experience negative and potentially discriminatory treatment at work each year.  It is a sad reality that a benefit versus detriment analysis needs to be carried out when considering any new right, even if the potential detriment arises from discriminatory actions by employers.

So what is the solution?  As with anything involving individuals there isn't an easy one size fits all answer.  Better workplace support and education about the problems some people face with period pain is needed. Introduction of a policy covering women's health that encourages employees to raise issues (and reminds employers that they may need to initiate the conversation) is a good start.  Such a policy could cover menopause and the impact of pre-menstrual tension and heavy bleeding as well as period pain.  As with the menopause, employees may be reluctant to highlight an issue which they perceive may detrimentally impact on their performance at work, instead preferring to struggle on in silence.  Supporting a women's group within the workplace where employees may feel more comfortable raising issues, or identifying one individual to approach could also help to get discussions going.

And what about the leave?  Other countries have introduced it, Japan being a pioneer with women being allowed to take days off work since 1947.  Employees in South Korea, Taiwan and Hong Kong have similar rights.  Nike also introduced a right to menstrual leave in 2007.  It remains to be seen if the proposed paid leave in Spain ever comes to fruition but it is probably not too controversial to suggest that menstrual leave is unlikely to hit the statute books in the UK any time soon.

That means the decision on whether to provide time off that does not reduce sick leave will be left to individual employers, and that may be best.  In some cases, time off could be the answer, but the leave may look different for each employee.  For example, some may be able to work from home for part of the day, others may not.  Some may agree with their employers to fulfil their working hours more flexibly, working less or not at all during their period but making up the hours at other times.  Some others may find that with other support within the workplace, no time off at all is required.  When it comes to such an individual problem, communication, flexibility and reasonableness may be a more effective tool than a general right to time off.

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