Barrister says Edinburgh employers must take periods seriously

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Nabila Mallick, an employment barrister at No5 Barristers’ Chambers, has said Edinburgh employers should pay greater attention to menstruation and menstrual health in the workplace.

She commented after a survey of 2,000 women by the Chartered Institute of Personnel and Development (CIPD) found 69% had a negative experience in the workplace resulting from menstrual symptoms.

“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,” said Nabila.

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“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.

Nabilla Mallick, Employment Barrister at No5 Barristers' Chambers.Nabilla Mallick, Employment Barrister at No5 Barristers' Chambers.
Nabilla Mallick, Employment Barrister at No5 Barristers' Chambers.

“Whilst some women get through the menstrual cycle with few concerns, other women may experience a host of symptoms relating to these health issues. There are various medical conditions relating to menstruation and women’s reproductive health that can be profoundly debilitating, both physically and/ or mentally, making it difficult to continue daily activities normally during menstruation or expected menstruation.

“Such conditions include endometriosis, pre-menstrual dysphoric disorder (PMDD), dysmenorrhea (painful menstrual periods) and abnormal uterine bleeding (AUB). Depending on the severity of symptoms from the conditions, 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.

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“However, periods can still be debilitating and impact an employee’s ability to undertake her duties without having a diagnosable condition. This should not mean that the employee cannot expect her employer to ‘accommodate’ her, 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.

"Afterall 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.

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"I would suggest that 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.

“Also, it may be advisable for employers to avoid any potential claims, by making specific provision in the workplace policies for how difficult symptoms associated with the menstruation are to be addressed. Doing so would send a clear message to female employees that they do not need to suffer in silence.”

“Negative experiences at work relating to periods are not limited to menstrual symptoms either. They can also relate to harassment. Comments that are obviously offensive, unwanted and relate to an Equality act protected characteristic – in this case, sex – would constitute harassment. That is the case, irrespective of the sex of the person making the comments, the status of that person within the organisation or whether they were directed at the women who heard them.”

"Employers are vicariously liable for the actions of their employees and, in certain situations, those of third parties, meaning that employers must be clear with their workers that such comments are unacceptable in the workplace.

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“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, not only for legal reasons, but also for the pragmatic reason that a large proportion of the workforce has a period every month.”

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