Does menstrual pain amount to a disability?

Over the past few years there have been a number of well publicised cases where tribunals have found that women with severe menopausal symptoms are disabled under the Equality Act. 

Many organisations have cottoned on to the risks. It's now much more common for employers to have menopause policies and provide training and guidance to help their line managers understand the basics and make appropriate decisions. It's not just about risk - it's also a business issue. Employers recognise that they need to support menopausal staff to retain there skills and experience. 

But there's much less awareness around other female health conditions - particularly menstruation - and, currently, hardly any cases where this is an issue. I was therefore really interested to see a case about menstruation pop up on the ET jugdment site: Platukyte v Secretary of State for Justice.

Facts

Ms Platukyte works for the Ministry of Justice as an administrator. She suffers from painful and debilitating symptoms linked to her menstrual cycle. In particular, she experiences migraines, severe pain leading to vomiting and loss of consciousness, heavy bleeding, above average abdominal pain, and severe constipation causing excessive gas, bloating and piles. The majority of these impact her for five days every month. 

Ms Platukyte was able to manage these symptoms by working from home.  

The MoJ changed its working from home policy in 2022 and Ms Platukyte was told that she had to come into the office on a full-time basis. When her symptoms were bad, she had to speak to her line manager and if they couldn't accommodate home working on that particualar day, her absence would be treated as sickness.  

Ms Platukyte made a number of requests to work from home when her symptoms were particularly severe. Some of these were denied because there was insufficient work for her to do from home.

The upshot was that Ms Platukyte needed to take more days off sick and that triggered the MoJ's sickness absence policy. She was given a series of warnings, culminating in a final written warning. At that point she brought proceedings against her employer alleging they had breached their duty to make reasonable adjustments by refusing to allow her to work from home, and that issuing absence warnings amounted to discrimination arising from her disability. 

Decision

The MoJ accepted that Ms Platukyte's symptoms amounted to a disability and, in fact, conceded that it had:

• Failed to make reasonable adjustments on four separate occasions by refusing to allow her to work from home; and
• Had discriminated against her by imposing absence warnings for reasons linked to her disability.

That meant that the tribunal just had to decide how much compensation to award. 

Ms Platukyte was still employed by the MoJ so there was no loss of earnings. The key issue was, therefore, injury to feelings.

The tribunal accepted that she had suffered a significant injury. The discrimination had taken place over a period of 17 months and during that time, she had experienced: 

• severe and sustained stress, anxiety and loss of self-worth
• feelings of depression, tearfulness and had socially withdrawn from others 
• a significant reduction in her motivation
• serious strain on her marriage and relationships with family and friends
• loss of confidence
• sleep disturbances; and
• feeling anxious about the prospect of losing her job.

At the time she brought the claim, the lower Vento band was between £1,100 to £11,200; the middle band between £11,200 to £33,700 and the upper band of £33,700 to £56,200. The tribunal awarded her £24,000 which was in the middle band. With interest, her compensation came to just over £29,000. 

Tips for other employers

This case demonstrates that like menopause, menstruation isn't a disability but the symtoms associated with it might be. 

It's unsurprising that the respondent accepted that Ms Platukyte's symptoms were severe enough to amount to a disability.  Although they only affected her for around five days every month, they had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. Substantial just means something that is not trivial and Ms Platyukyte's symptoms can hardly be described as trivial.

To avoid finding yourself on the wrong end of a tribunal claim, we recomment that you consider the following:  

1. Sickness absence triggers

Women suffering extreme symptoms may phone in sick during their periods. They may complain of stomach ache or other general symptoms rather than expressly referring to menstrual problems. Therefore, before triggering your formal absence management policy, have a sensitive conversation to find out if there is an underlying reason for their regular absence (or even irregular absence as not all women have periods on a fixed cycle). If it is related to their periods, consider making some adjustments to the trigger points in the policy and/or allowing women to work more flexibly during this time (if that's possible).

2. Reasonable adjustments

Periods affect women in different ways and to different degrees. Some women may need easy access to a toilet because of a heavy flow or to a hot water bottle (or over the counter medication) to sooth cramps. 

Are there any changes you can make to support staff to continue to work rather than phone in sick? Can they work at home, or make up their hours at some other time? This won't be possible for all jobs but it might be worth thinking ahead about how you might be able to accommodate flexible working for a few days a month. 

3. Support 

Try and be supportive, rather than judgmental. Don't bring your own experience into the discussion (or that of your wife or girlfriend). 

Find out what you can do to help. The employee might just want to be able to sit with a hot water bottle or to take more frequent loo breaks.

Bear in mind that not all women will want to discuss their periods with their line manager. If they don't is there someone else they could talk to? 

It might be helpful to develop a policy so that your female staff understand what support is available to them. That should also cover other hormonal conditions that predominately affect women such as endometriosis and pelvic inflammatory disease. 

Attitudes to menstruation

Prejudice around menopause is being broken down. But menstruation is still a taboo subject, despite the fact that it's something women experience for the majority of their working lives. There are some drivers for change - but there doesn't seem to be the same momentum around raising awareness that we've seen in respect of menopause.

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