Menstrual leave in the workplace

What matters

What matters next

As awareness around the menopause increases, should other areas of female health be given the same attention? We consider the pros and cons of granting employees time off work during menstruation, and what other alternatives could be offered by employers.

Menstrual leave is a leave of absence from work during menstruation to assist those who experience severe and often debilitating symptoms. Whilst not necessarily a new concept, ‘menstrual leave’ is still not widely implemented in the UK. A small number of countries such as Japan, Indonesia and South Korea have already passed laws to provide for such leave, with Japan’s law dating back as early as 1947. The reasons for this are largely cultural and the response, somewhat mixed. It seems menstrual leave is often unpaid, and some individuals feel unable to benefit from such leave, due to perceived shame and stigma around the topic.

In February this year, Spain became the first European country to pass a law allowing employees paid time off work for menstrual pain. Employees will be entitled to three days leave each month if they experience debilitating periods, with the possibility of an extension of up to five days. However, to be eligible, an employee must first obtain a doctor’s note, with the public security system covering the cost of the absence; at a rate of 75% of the employee’s earnings.

There is currently no equivalent law in place in the UK entitling employees to time off work during menstruation, be it paid or otherwise. We note that some organisations do  offer some time off to those experiencing difficult or painful periods, but this is at their sole discretion and it certainly is not commonplace. For the majority of employees in this country, who suffer with debilitating periods, they will need to rely on sick leave policies and hope that contractual sick pay will be sufficient. If employees do not receive contractual sick pay, any absence will likely be unpaid since under our current laws, an employee needs to be absent due to illness for at least 4 consecutive days to receive Statutory Sick Pay. 

We have seen increasing coverage on women’s health in recent months, with menopause discussions becoming less taboo. However, there is no indication that menstrual leave will become law anytime soon, nor implemented independently by businesses more frequently as a workforce policy. Leaving us to question, should it be standardised, or should it be left at the employer’s discretion?

Periods as a disability

Under the Equality Act 2010, a person is considered ‘disabled’ for legal purposes if they experience ‘a physical or mental impairment, which has a substantial adverse effect on their ability to carry out normal, day-to-day activities’. This effect must also be long-term, meaning that it must last (or be expected to last) at least 12 months. Whether period pain and related symptoms are considered a disability has not yet been tested in the employment tribunal. However, in recent case law, the menopause was held to be a disability when the Claimant experienced fatigue, light headedness, confusion, stress and anxiety, amongst others. In another case, the Claimant experienced heavy bleeding, lack of concentration and brain fog. All of these symptoms are also common with menstruation, so it will be interesting to see how tribunals consider comparable claims of this nature in future.

Application of menstrual leave policies

Implementing a menstrual leave policy within an organisation may go some way in breaking down the barriers and reducing the stigma surrounding periods. The issuance of such a policy demonstrates to employees that the employer is fully supportive of health matters, and further may encourage discussion around such a taboo topic. 

Providing employees with a monthly or annual quota of leave in addition to statutory and contractual holiday and sick pay may also promote productivity. It would allow those experiencing severe symptoms to rest when needed, rather than push through intolerable pain.

Before implementing a policy of this nature, serious consideration would be needed. Would the employer allow those experiencing symptoms to take leave at their own discretion, or, would a doctor’s note be required? What happens if the employee is unable to get a doctor’s appointment to obtain a medical certificate? How ‘severe’ do the symptoms need to be before leave is granted?

Whilst trying to promote health and wellbeing and support employees, it may affect gender equality in the workplace as employees who menstruate would be receiving different treatment to those that don’t. These employees would also need to disclose very personal details to their employer when providing reasons for their leave which may deter some from making use of any time-off. 

Depending on the policy and how it is implemented, there is also a risk that employees may view the additional leave as an entitlement as opposed to a benefit which is only to be used in extreme circumstances. Furthermore, how would the employer manage a team and its workload if there are competing requests for leave from members of the same team? It is not necessarily appropriate to refuse this request if it’s for medical reasons, but equally a team cannot work effectively if it’s short staffed.

Alternatives

If an employer is not ready to implement a formal menstrual leave policy, we have considered below alternatives that could be put in place relatively quickly:

Hybrid working arrangements

now more commonplace, this working arrangement allows employees the flexibility to work from home which may help individuals manage their symptoms. 

Flexible hours

whilst not possible for all organisations, the ability to flex daily hours when experiencing severe symptoms may assist employees by allowing them time to rest if needed, without affecting their daily workload. Starting an hour or two later in the day may be all that is needed to make a noticeable difference in their overall health.

Alternative working spaces

provide spaces within an office where employees can work more comfortably or privately if they are experiencing period symptoms.

Provide free period products

this will help demonstrate a culture of openness and support those who menstruate. It is worth highlighting these products should be provided in both male and female toilets to ensure those that identify as male, but still menstruate do not feel discriminated against.

Alternative uniforms

assess the current uniform (if applicable) and consider if a darker colour is more appropriate. For example light coloured fabrics may cause anxiety around leakage during menstruation, which can be resolved with a simple colour switch.

Communication

encourage good channels of communication within an organisation so employees can express how they are feeling. Internal networks may be a good tool to help foster inclusivity and promote conversations within an organisation.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024.

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