20. Juli 2023
The impact of dysmenorrhea on those who menstruate is often underestimated and goes under the radar. Up to 91% of women of reproductive age suffer painful periods. This begs the question: Should there be a statutory right to leave from work for menstruation-related illness?
While no statutory menstrual leave currently exists in the UK, recently the British Standards Institution recommended a new standard, with effect from May 31, for action from employers, such as ensuring they have suitable facilities to access menstrual products, appointing workforce advocates, and creating a supportive and non-stigmatising culture.
With Spain being the first European country to approve menstrual leave as of February, allowing women to request three paid days off per month, is the introduction of menstrual policies a progressive step towards sex equality or a potential move in the opposite direction?
In the absence of any similar legislation in any other European country, it is currently up to individual employers to decide how far they want to go with menstrual leave policies, if any.
Some employers provide similar rights as part of their benefits offerings to attract and retain employees, such as French supermarket giant Carrefour that will allow one day off per month for employees suffering from endometriosis.
UK period equality groups have been pushing for legislation similar to Spain's to be introduced, and the Labour party has published plans to introduce menopause leave for employees if they come into power, which could be an indication of things to come should they be elected into government at the next general election.
Whether statutory menstrual leave will become more widespread across Europe remains to be seen - partly determined by the experience of Spain, but attitudes will differ according to national politics.
For example, in 2022, Scotland became the first country in the world to make period products free in public sector environments in an attempt to tackle period poverty. While related to class and economic equality, it could indicate an openness to introducing legislation similar to Spain's.
Other countries may differ, such as Italy, which considered introducing a menstrual leave law in 2016 but blocked it due to worries about the perceived detriment it would have on working women.
Countries such as Japan, China, South Korea, Indonesia and Zambia have offered statutory menstrual leave for many years, but feedback suggests the policy may not have been successful in terms of the lived experience of women.
Instead of feeling empowered and supported by the policies, it is reported women feel too embarrassed to utilise the leave for fear of it seeming like a sign of weakness.
There have even been concerns that sharing details of leave with male colleagues or managers could antagonise them and may lead to increased accounts of workplace sexual harassment.
Some believe that there is not a need for menstrual leave as such, and that pathologizing people is counterproductive.
If sickness benefits can include these and other symptoms, it is argued that equality of access will benefit all employees and gives greater gender parity at work, as with shared parental leave which can be utilised by both men and women.
A 2019 survey of over 30,000 women in the Netherlands revealed that 14% had taken sick leave for menstruation related illness, but only 20% of them would disclose the real reason to their employer. Menstrual leave policies may be unnecessary in countries with generous statutory leave offerings.
As to "employer brand", when women are looking for jobs, they are increasingly empowered to make decisions based on hard economics and long-term prospects, with indications such as equal pay, family rights and career progression opportunities.
The EU Pay Transparency Directive, due to be transposed into national law by June 2026, will require companies with 250 staff in a country to report annually on their gender pay gap, provide information to employees about average pay levels by gender and provide gender-neutral pay and progression criteria.
As it happens Spain, again, already has some laws requiring similar reporting for applicants. But take up is reportedly patchy.
And the EU has had to threaten 18 member states with enforcement action as they have not yet implemented the Work Life Balance Directive, which requires extended rights to parents and carers.
Meanwhile outside the EU, recent UK legislation provides further employment rights for mothers by allowing paid leave for neonatal care and greater protection from redundancy when returning from maternity leave.
This legislation, which aims to address the gender pay gap and providing additional employment rights to mothers, will tangibly help to inform women when choosing where to work, and subsequently drive forward gender equality.
The emphasis on introducing leave for menstruation, which in practice has been narrowly applied in the instances it has arisen, may be distracting focus from these other legal and more pertinent developments that aim to improve women's rights, as well as the need for employers to have robust sick leave policies that cater to all kinds of illnesses and that employees feel they can utilise properly.
For employment lawyers, laws addressing the gender pay gap, family rights and equal opportunities will be more relevant to tackling gender equality at work than menstrual leave policies.
This article was first published in Law360.
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