Legal advice: The menopause and the need for better legal recognition

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Despite the menopause being a natural part of the ageing process for half of the world’s population, societal understanding of the condition and its symptoms remains sadly limited.

Typically, the menopause will start at between 45 and 55 years of age and can lead to symptoms including poor memory and concentration, brain fog, insomnia, erratic behaviour and mental health conditions such as anxiety and depression.

And yet, in many workplaces and social circles, it continues to be a source of humour, with tongue-in-cheek references to hot flushes and forgetfulness trivialising what for some women is a debilitating health condition.

Sam Baker, former editor in chief of UK fashion magazines Cosmopolitan and Red and author of The Shift: How I (Lost and) Found Myself After 40, commented in a newspaper interview: “Midlife perimenopausal women are the butt of jokes – they’re hormonal, hot, a bit puffy around the middle.”

But the impact of the menopause on women’s physical and mental health can be so severe that, in a recent survey of 3,800 UK women, 99% said they felt that their symptoms had negatively impacted their careers, with over a third saying the impact was significant.

Nearly six in 10 took time off work as a result, and 18% were off for more than eight weeks.

The trend towards financial independence

According to the most recent ONS statistics, the average age for a woman to get divorced in England and Wales is now 45 – an age at which, as we have seen, many women begin to experience their first perimenopausal or menopausal symptoms.

Given the evidence outlined above demonstrating the serious impact menopause can start to have on women’s lives and careers at this age, one might expect a court to take this into account when looking at women’s earning potential and ongoing maintenance requirements during divorce proceedings.

A recent article published in the Law Society Gazette, however, would indicate that this is not the case.

“Menopause or biology do not appear as factors to be considered by the court, although the court can take into account age and disability more generally,” concludes the author, Farhana Shardy.

Ms Shardy has launched the Family Law Menopause project, which aims to ensure that divorce settlements adequately reflect the impact of the menopause on women’s ability to work and directly challenges the Divorce (Financial Provision) Bill (currently awaiting its second reading in Parliament) which proposes to limit spousal maintenance to five years.

While the modern emphasis on a clean break in divorce and the downward trend in spousal maintenance orders likely have the best of intentions – after all, today’s women are perfectly capable of pursuing full-time careers, and the assumption that they should rely on their ex-spouse for financial support is likely considered archaic by many – Ms Shardy is concerned that the impact of the menopause on many women’s career prospects is not being acknowledged.

 An employment issue

And yet, if women feel unable to continue working due to the menopause, then surely this is a much wider legal issue with implications not only for Family Law, but also branching into Employment Law?

The Equality Act 2010 was designed to ensure that certain ‘protected characteristics’ (such as age, gender, sexuality or disability) did not impact an employee’s ability to work.

Whilst it could be argued that the menopause is largely covered by protections against age, gender and disability-based discrimination, calls have been intensifying in recent years for the introduction of further measures, including a workplace menopause policy.

In response to these calls, the Women and Equalities Committee launched an inquiry in July last year and published the results of a survey of over 2,000 women on 25 February 2022.

The findings revealed that there is still a considerable stigma about talking about menopause at work, with 26% of respondents saying that the main reason they don’t ask for workplace adjustments is that they are ashamed.

Compounding the issue is the fact that many workplaces don’t have any policies relating to menopause and women don’t know where to seek support even if they would like it. The report found that many respondents would like more support from their employers, including reasonable adjustments and greater flexibility, as well as the removal of stigma in the workplace.

Caroline Nokes, Chair of the Women and Equalities Committee, commented: “If companies want to retain talent and experience, they need to wake up to the reality of menopause.

“Our survey shows us just how common symptoms which have an obvious impact in the workplace are, and how ashamed those experiencing them feel. Yet the survey tells us that the solutions are in easy reach for most organisations.”

Time to wake up

Whether it’s during divorce proceedings or in the workplace, the impact of the menopause on women’s lives cannot continue to be ignored.

It cannot continue to be the subject of casual banter both at work and at home.

Better awareness and education of the condition will go a long way to resolving many of the issues discussed in this article, and it seems that Ms Shardy’s campaign and the ongoing inquiry by the Women and Equalities Committee are welcome steps in the right direction.

If you would like any further advice following this article, please do not hesitate to contact a member of our Family or Employment team.

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