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.
While some women get through the menstrual cycle with few concerns, other women may experience a host of symptoms. Depending on the severity of these, women may be protected from discrimination on the grounds of disability under the Equality Act 2010. 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.
However, periods can still be debilitating and impact an employee’s ability to undertake duties without having a diagnosable condition. This should not mean that the employee cannot expect the employer to be accommodating, for instance in respect of sickness absence triggers.
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.
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.
It may be advisable for employers to avoid any potential claims by making specific provision in their workplace policies and benefits for how difficult symptoms associated with menstruation are to be addressed. Doing so would send a clear message to female employees that they do not need to suffer in silence.
We have seen far greater awareness in recent years of discrimination and harassment relating to the menopause in the workplace, but very little attention to discrimination and harassment relating to menstruation. This is certainly an area that employers in general need to be taking more seriously.
Nabila Mallick is an employment barrister at No5 Barristers’ Chambers