Endometriosis workplace support

Endometriosis is a condition where tissue similar to that in the lining of the womb grows elsewhere in the body, such as on the ovaries and in the fallopian tubes. It is unclear why this happens, but it is thought that cells in the lining of the womb may be carried to the pelvis during a woman’s period.

Symptoms can include lower abdomen or back pain, severe pain during periods, pain during sex, bowel and bladder symptoms, and fertility problems. The symptoms can vary for different women, with some more severely affected than others. Endometriosis can have a significant impact on some women’s lives and can lead to feelings of depression and relationship problems.

Endometriosis usually affects women during their reproductive years but can affect women of any age. It is not known how many women are affected by endometriosis in the UK, there are no official figures collected on prevalence but a figure commonly cited is that it is estimated to affect 1 in 10 women. In 2015, the Royal College of Nursing reported that “the exact prevalence of endometriosis is unknown but estimates range from between two and 10 per cent of the general female population but up to 50 percent in infertile women.” The NHS does collect data on hospital admissions where endometriosis was the primary condition – in 2018-19 there were 23,000 hospital admissions where the main cause was endometriosis in England.

There is currently no cure for endometriosis, but there are treatments that can help with symptoms. These include painkillers, hormone treatment, such as hormonal contraception, and surgery. NICE published clinical guidance on the diagnosis and management of endometriosis in 2017.

For more general information on endometriosis, see the following sources:

• NHS, Endometriosis, January 2019
• Endometriosis UK, Understanding Endometriosis
• Royal College of Obstetricians and Gynaecologists, 10 things you should know about endometriosis, February 2017

There are a number of different employment rights which may be important for women who suffer from endometriosis. Endometriosis UK, a leading charity, have produced a helpful guide for employers which provides an overview of the relevant employment laws and the issues that can arise in the context of endometriosis. It raises three areas of employment law in particular:

• The duty to make reasonable adjustments
• Statutory sick pay
• Flexible working

Discrimination and Reasonable Adjustment

The Equality Act 2010 (EqA) contains the law on discrimination and reasonable adjustment.

The EqA prohibits three types of discrimination on the basis of disability:

• Direct discrimination;
• Discrimination arising from a disability; and
• Indirect discrimination.

In addition, the Act requires employers to make reasonable adjustments for workers who have a disability.

The Commons Library Paper, People with disabilities in employment, provides an overview of these provisions. The Equality and Human Rights Commission’s Employment Statutory Code of Practice also provides a detailed overview, including lists of examples.

The EqA defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities (see section 6).

The Endometriosis UK guide states:

If that condition prevents her from carrying out day-to-day tasks (even if this is not every day but a repeat cycle), then she may be entitled to the protection of the Equality Act.

‘Substantial’ is an important word. It is entirely possible that two women with endometriosis will fall on either side of that definition because of the extent of the effect the condition causes.

Statutory sick pay

The Social Security Contributions and Benefits Act 1992 sets out the rules on statutory sick pay (SSP).

An employee who has a ‘period of incapacity for work’ (i.e. is sick for four or more consecutive calendar days) is eligible for SSP from the fourth ‘qualifying day’ (i.e. days on which they would normally work). Two periods of incapacity for work which are separated by fewer than 8 weeks can be linked (i.e. SSP is paid from the first ‘qualifying day’ in the second period).

SSP is payable at a statutory rate (currently £94.25 per week) and is payable for a maximum of 28 weeks in any three-year period.

Section 24 of the Commons Library Paper, Key Employment Rights, covers this in detail.

The Endometriosis UK guide states:

For some women with menstrual related problems such as endometriosis, the cycle of repetition can mean the sick leave is linked. For other sufferers of repeating conditions that are more erratic or on a longer cycle of repeats, the repeating three day ‘nil payment’ periods can be a real problem.

Flexible working

The Employment Rights Act 1996 sets out the rules on the right to request flexible working.

An employee with 26 weeks’ continuous service with their employer can request flexible working (i.e. changes to their working hours, times or location of work). Employers can refuse the request but can only do so on the basis of one of the grounds listed in the legislation.

The Commons Library Paper, Flexible working, covers this in detail.

The Endometriosis UK guide notes:

Although the statutory wording is “flexible working”, she cannot apply under the statute to work ‘flexibly’ as most us would understand the word – i.e. variable hours that she chooses. She can apply under the statute to change work location or change work hours to some other specific place or work pattern. These are normally permanent rather than temporary changes.

Proposed reforms

On 18 July 2019, the Government published its consultation, Health is everyone’s business: Proposals to reduce ill-health related job loss. Among other things, the consultation proposes reforms for SSP and reasonable adjustments.

The consultation made a number of proposals aimed at making SSP more flexible. These include:

Allowing SSP to continue during phased returns to work (i.e. wages and SSP paid pro rata);

Extending SSP to employees who earn under the Lower Earnings Limit;

Removing the concept of qualifying days.

It also proposes charging a new single labour market enforcement body with the enforcement of SSP and increased fines for employers that fail to pay SSP.

The consultation also proposed creating a new right to request workplace modifications. It would apply to a broader range of workers than those who have a disability within the meaning of the EqA and would exist alongside the duty to make reasonable adjustments. It would be a right to request workplace modifications. Like flexible working, employers would be able to refuse a request for modifications on certain grounds. The consultation suggests various options for eligibility, ranging from workers who are returning from long-term sickness absence to any worker who can make a case for modification on health-related grounds.

The consultation closed on 7 October and the Government is currently considering responses.