Women’s Health in the Workplace

On 12 March 2024 I will be attending the Chartered Institute of Personnel and Development (CIPD) Scotland Annual Conference with colleagues. One of the sessions which I’m attending focusses on supporting women’s health in the workplace. This has led me to reflect on what are the particular considerations for employers when considering women’s health at work and why this matters from a legal standpoint as well as from a business perspective. Please note that this article focuses on those who experience menstruation and consequently does not cover all issues relating to women’s health at work. Further, while I have referred to “women’s health” throughout, some of what is discussed below will apply to trans individuals, people with variations of sex development (VSD), and those who identify as non-binary.

Key factors which can impact upon a woman at work

While it’s expected that everybody is aware of the natural process whereby women menstruate roughly once a month, what continues to be less well known or understood is the varying impact this can have on women. In November 2023 the CIPD published the results of a survey it had undertaken in which they had gathered responses from over 2,000 women, aged 18-60. The results included that 53% had been unable to go to work at some point because of menstruation symptoms and for 4% this was the case every month. Reported symptoms included abdominal cramps, fatigue and low mood. 15% of those spoken to have a menstrual condition such as endometriosis or polycystic ovary syndrome (PCOS) which come with their own set of symptoms. Sadly, nearly half of the women said that they would never tell their manager if they had to take time off for a reason linked to their menstrual cycle. Another natural stage of woman’s life that can have a profound impact upon them in the workplace is the menopause (including perimenopause and post-menopause). Normally menopause happens between the ages of 45 and 55 but it can be earlier or later. The symptoms of the menopause last between four and eight years on average. Menopause affects each woman differently, but the majority of women will experience some symptoms. Those symptoms can include fatigue, headaches/migraines, insomnia/difficulty sleeping, difficulty concentrating & forgetfulness and anxiety/depression. In October 2023 the CIPD published a report following a survey of over 2,000 women, aged 40-60 who could be experiencing the menopause transition while employed in the UK. A headline finding was that “most working women (aged 40 to 60) have experienced symptoms related to menopause transition and over half have been unable to go into work at some point due to menopause symptoms”. Two thirds of the women spoken to reported psychological symptoms such as memory loss, panic attacks, loss of confidence and reduced concentration. Other findings were that “around one in six people (17%) have considered leaving work due to a lack of support in relation to their menopause symptoms, and a further 6% have left work” and more than 10% have felt discriminated at work because of their menopausal symptoms.

Implications from a legal standpoint

Under the Equality Act 2010 (EqA 2010) there is protection from discrimination, including harassment and victimisation on the grounds of age, disability, gender reassignment and sex (among other protected characteristics). Consequently, while there is no specific protection in relation to the menopause (for example), a person who is treated less or unfavourably because of symptoms associated with the menopause, may be able to bring a discrimination claim on the basis of one of these protected characteristics. There has been at least one employment tribunal decision in which a claimant was found to be disabled (i.e. they suffered from a physical condition which had a long-term substantially adverse effect on their ability to undertake normal day to day activities) under the EqA 2010 due to their menopausal symptoms (Donnachie v Telent Technology Services). Where an employee is disabled, their employer is under a legal duty to make reasonable adjustments in certain circumstances. It is also possible that an employee could raise a harassment or another type of discrimination claim on the ground of disability or sex if treated adversely for a reason connected with menstrual symptoms or a menstrual condition, such as endometriosis. The fact that a woman is experiencing menstrual symptoms, suffering from a menstrual condition or experiencing symptoms of the menopause could also affect the reasonableness of any decision to dismiss an employee due to their levels of sickness absence or performance. An employer that failed to take this into account (where it is relevant) and explore what it could do to support such an employee before dismissal, would risk a finding of unfair dismissal in any subsequent employment tribunal claim. That support might include allowing an employee to work from home or providing them with flexibility with their start and finish times to help them to better support their symptoms. Employers should be prepared to have open and understanding conversations with women about what will help them and what an employer can reasonably facilitate.

What can employers do to support women in the workplace?

It makes business sense to support women whose ability to attend work or perform at their best when at work, is being negatively impacted by menstruation or the menopause. The alternative can lead to loss of talent, increased costs to the business through sickness absence days or recruitment costs and a negative impact on staff morale/workplace culture which in turn can affect a company’s ability to attract the best people. This is all in addition to the potential legal implications referred to above. An employment tribunal claim can cost a business a significant amount of money in legal fees even if successfully defended and can damage a business’ reputation given it is a public forum. There are now a number of sources of guidance for employers who want to know how to best support women in the workplace. On 31 May 2023 the BSI published a new standard called “Menstruation, menstrual health and menopause in the workplace” (BS 30416) which can be downloaded for free. It provides practical guidance on what employers can do (such as providing fans at desks or alternative uniforms) and guidance on non-stigmatising language to discuss menstruation and the menopause. Acas also provide guidance on “menopause at work; managing the menopause”. Most recently on 22 February 2024 the Equality and Human Rights Commission (EHRC) published guidance for employers regarding menopause in the workplace. It contains explainer videos which cover making workplace adjustments and conversations around the menopause. One key means of better supporting women is to create an open culture in which discussion about menstrual health or the menopause is not taboo. Implementing a menopause at work policy; appointing a menopause champion; and/or providing training to line managers on having appropriate discussions with staff about menstrual health and/or the menopause, are some of the steps that can be taken to help create that culture. That more needs to be done in this area was highlighted by the survey conducted by CIPD (referred to above) which found that “workplace support makes a considerable difference but only a quarter say their organisation has a menopause policy or other support”. The most helpful measures cited by those spoken to by CIPD in terms of supporting menopausal symptoms were flexible working and the ability to control temperature. I’m looking forward to what I’m sure will be an interesting discussion at the CIPD Scotland Annual Conference on this topic. I, Scott Milligan, Partner and Laura Brennen, Senior Solicitor, from our Employment Team, will be attending the CIPD conference on 12 March 2024 and will be available at the Harper Macleod stand on the day. We would be pleased to discuss this topic with delegates, including how we can support your organisation with an appropriate menopause policy and training.