Women's health and the dilemma of disclosure #isitadisability? #HRessentialread

This post refers to UK legislation and may not be relevant to people living outside of the UK. 

 

Key Points

  • Female health conditions such as PMDD, Endometriosis, Fibroids and PCOS can be classed as a disability
  • You must be able show that the condition has had a substantial adverse effect on your daily life
  • You must be able to show that the condition is long-term / recurring 
  • You are not legally obliged to tell your employer about your condition if you don’t want to
  • If you choose to disclose your condition (and have established that it is a disability) your employer must take positive steps to remove barriers you might face at work
  • It is generally unlawful for an employer to ask questions about your health, absences from work, or disability before an offer of employment is made
  • You are within your rights to ask for ‘absence trigger’ policies (e.g. stage 1,2,3) to be adjusted if you are living with ongoing and recurring health conditions which results in absence from wor

 

Introduction

Many women worry about whether or not to tell an employer about conditions related to reproductive and genealogical health. At the same time, an employer and/or colleagues might want to provide support but may worry about saying or doing the wrong thing, especially as these conditions are sensitive and personal. 

However, as most of us spend a large proportion of our time at work, an employer has the potential to be a crucial source of support. This is especially true for women trying to manage certain health conditions, which can have a huge impact on their physical and emotional wellbeing. 

The Equality Act 2010provides legal protection for certain illnesses when they are established as a disability.

According to the Equality Act a person is considered disabled if they have:

'a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities'.

But, what does this mean for menstrual-related health conditions? To establish this, we need to delve deeper into the Equality Act…

 

Under the Equality Act, what are day-to-day activities?

Actions carried out by most people on a regular basis are considered as “normal” day-to-day activities. Some examples are:

Walking                         Eating                                   Carrying things

Driving                          Using public transport           Typing

Washing                        Being able to understand       Reading

Writing                          Being able to concentrate      Being able to socialise

Getting dressed            Talking

 

What is meant by a substantial adverse effect?

A condition must have a substantial adverse effect on your daily life, to be considered a disability. This does not mean that the condition stops you from doing something completely, but it certainly makes it significantly more difficult. It also means that you might avoid doing certain activities, because of the pain or tiredness caused, for example. 

Example 1

You have PMDD. This makes it very difficult for you to do many daily activities such asgetting dressed, being able to socialise and being able to concentrate,because of the extreme exhaustionand anxiety you experience.

Example 2

You have Fibroids. As a result, you live with very heavy and painful periods. This makes it very difficult to do many daily activities such as walking, driving and using public transport, because of the extreme pain and discomfort you experience. 

Example 3

You have severe anxiety as a result of your condition. This means you avoid going to work, as you often experience panic attacks or emotional episodes in your office. 

In all three of these examples, the condition is havinga substantial adverse impact on daily life. 

 

What it meant by long-term under the Equality Act 2010? 

In order to be considered as a disability, a condition must be shown to have an adverse impact on your life. This means that the negative effects of the condition:

  • Have lasted for more than 12 months
  • Arelikely to last for more than 12 months
  • Are likely to last for the rest of your life

It is also worth mentioning, particularly in the case of women’s health, that you might have a condition which later develops into another, related condition. When we look at these together, if the adverse effects last for more than 12 months, you will be considered as having a disability under the equality act. 

Example

Last year you suffered from a hormone-related condition which had a substantial effect on your daily life. It lasted for 6 months. This then caused anxiety and depression which also negatively impacted your daily life and lasted for 7 months. Together, these conditions had an adverse impact for more than 12 months. As such, they are considered as long-term. In this case, you would be treated as having a disability under the Equality Act. 

 

Conditions that reoccur 

Many female-related health disorders are recurrent. This means that symptoms might only last for a few days or weeks of the month, but they reappear every month, or every few months. 

Example

You have Endometriosis. This is a chronic condition which comes in episodes. During one of your episodes you get severe cramps, back pain and migraine, which makes it very difficult for you to travel to work. Although thisepisode only lasts for a couple of days, it’s likely tohappen again. Your condition would be treated as having a long-term effect.

In the case of reoccurring conditions, you have to be able to show that the adverse effects are likely to come back again in the future. Some suggestions:

  • Keep a symptom diary / use a tracking app to record the adverse impact over time
  • Ask for copies of medical records and notes from GP visits 
  • Find information from reputable sources (e.g. Endometriosis UK) to highlight the cyclical nature of the condition
  • Ask your GP or Health Care Professional to provide a letter explaining that the condition is recurring 

It is fair to say that many female-related health conditions can be classed as a disability under the Equality Act 2010. So, what does this mean?

 

Do I have to tell an employer about my condition?

No. You are under no obligation to tell an employer about your condition. However, it might be better to do so, as they may be able to support you more effectively by having this information. 

 

Do I have to tell colleagues about my condition? 

No. You are under no obligation to tell your colleagues about your condition. However, telling colleagues might help them to understand what you are going through and why you may not be functioning as normal. 

If you speak to a Line Manager about your condition, they are not permitted to share this with other members of the team. In fact, sharing information about someone's health without their permission is a breach of the Data Protection Act 1998. 

 

What should my employer do?

If you have a disability and you choose to disclose it, your employer must take positive steps to remove barriers you might face because of your condition. This is known as ‘reasonable adjustment’. Reasonable adjustments enable those with a disability to stay in their job and prevent them from being disadvantaged at work. It is important to keep in mind that adjustments must be ‘reasonable’. Some things to consider before seeking adjustments in the workplace: 

  • Are they practical for your employer to make? 
  • Does your employer have the resources to pay for them? 
  • Will they be effective in overcoming or reducing your ‘disadvantage’ in the workplace? 
  • Will they have an adverse impact on the health and safety of others? 

Example

Your employer allows you to work flexible hours so that you can take additional breaks to overcome fatigue arising from your PMDD. Your employer might also allow you to work part-time or different working hours, where possible. 

Example

Your PMDD means that you need more time off work than someone without a disability. In some cases, this is to attend medical appointments. Your employer allows you this time, which may be an adjustment to the existing sickness/absence policy. Some employers call this ‘disability leave’. Your employer might also consider any disability-related absence as separate to sickness-related absence, so that you are not at a disadvantage. 

 

Sickness Absence

Sickness absence is a particular challenge for some women, due to the debilitating impact of many conditions. Having to take days off sick can cause huge anxiety and fear around job security. This is especially true in organisations that use ‘absence triggers’. These are the number of days’ absence that trigger warnings and possible dismissal. In some companies, it is referred to as Stage 1,2 and 3. 

It is fair to say that these policies should be ‘adjusted’ for women living with ongoing and recurring health conditions, as absence from work may be unavoidable due to the debilitating nature of some disorders. 

 

Discrimination

It is against the law under the Discrimination Act 2010 for an employer to reject a disabled applicant because they don’t want to make reasonable adjustments. Therefore, if you choose to disclose your disability when applying for a job, a potential employer can’t refuse to interview or hire you because of this. 

It is generally unlawful for an employer to ask questions about your health, absences from work, or disability before an offer of employment is made. 

Similarly, at interview, you should not be asked personal questions that are not related to the job. If you choose to share information about your condition, the interviewer / panel must make sure that this does not influence their decision.  

 

 

For further information or support contact clare@seeherthrive.com