Considers the intersection between employment policy and family law, and the changes in work and family regarding traditional gender roles. Examines UK and EU policy initiatives aimed at achieving a better work/life balance for employees with children. Argues that many of the policy aspirations are predicated on an equal opportunities employment model that may not exist in practice and also fail to reflect the realities of family life

Mair, Jane

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          Mair, Jane (2013) An ideal balance? Employment Law Bulletin, 117 . pp. 2-4. ISSN 1352-2159  Copyright © 2013 Thomson Reuters  A copy can be downloaded for personal non-commercial research or study, without prior permission or charge  Content must not be changed in any way or reproduced in any format or medium without the formal permission of the copyright holder(s)   When referring to this work, full bibliographic details must be given    http://eprints.gla.ac.uk/90921/      Deposited on: 19 February 2014                Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk Employment Law Bulletin2013An ideal balance?Jane MairSubject: Employment. Other related subjects: Family lawKeywords: Employment policy; EU law; Family law; Flexible working; Gender*Emp. L.B. 2 Once upon a time, not so long ago, the rules of the game were clear in both the marketand the family: men went to work and women stayed at home particularly when the men becamehusbands and fathers and the women became wives and mothers. This gendered model wasreflected in employment law where men earned a family wage and women, if they worked at all, didso for “pin money” and often part-time. In family law too, sex-specific roles were clearly defined anddivided, with marriage based on the dominant model of male breadwinner and female homemaker.Recent decades have witnessed significant shifts in both work and family and these characters nowseem out of date and of little relevance. Equality legislation prohibits different treatment and differentpay for male and female workers and family law favours gender-neutral language, treating husbandsand wives as spouses and mothers and fathers as parents. Not only have the old fashioned,gendered distinctions been questioned but the very split between work and family has beenchallenged. Men and women, fathers and mothers are increasingly encouraged to adoptinterchangeable roles as employees and parents and to move freely between the spheres ofworkplace and home. The outdated stereotypes of male employee and female carer have beenreplaced by a modern gender-neutral ideal: the individual with work/life balance.The idea of family friendly employment and work/life balance came to prominence in the UK whenNew Labour came to power (Department for Trade and Industry, Fairness at Work (The StationeryOffice, 1998) Cm.3968 Ch.5). Prior to that, pregnant employees were provided for by way of statutorymaternity rights but these rights had long been associated with strict entitlement thresholds andnotoriously complex regulations and they were widely perceived as a burden on employers. Pregnantemployees were a fact of life and they merited some accommodation but they were quite clearly aproblem. The introduction of family friendly employment rights signaled a break with the old. Unlikematernity rights, these new rights were not just for women, so the burden and the benefits could bemore evenly spread, and they were presented with a positive spin. Facilitating the accommodation ofwork and family promised benefits for all with: increased gender equality; better motivated and moreproductive employees; higher rates of employment; and lower welfare costs. The work and familyagenda has developed through various consultations and sets of regulations; most recently theDepartment for Business, Innovation and Skills (“BIS”), Consultation on Modern Workplaces (BIS,2011) and the statutory changes resulting from it.This UK shift is situated within a broader EU context. At a European level, the recognition of familyresponsibilities was initially constructed within the confines of sex equality (e.g. in Dekker v StichtingVormingscentrum voor Jonge Volwassenen Plus (Case C-177/88) [1991] I.R.L.R. 27), it thendeveloped through special rights for pregnant workers (Directive 92/85/EC on the introduction ofmeasures to encourage improvements in the safety and health at work of pregnant workers andworkers who have recently given birth or are breastfeeding [1992] OJ L 348) and provision forparental leave (Directive 96/34/EC on the framework agreement on parental leave concluded byUNICE, CEEP and the ETUC [1996] OJ L 145, replaced by Directive 2010/18/EU implementing therevised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME,CEEP and ETUC [2010] OJ L 68/13) and burgeoned into a key policy concern around thereconciliation of family and professional life (see e.g. European Council, Managing DemographicChallenges Through Better Reconciliation of Work and Family Life - Conclusions of the Council(“Council conclusions”) (European Council, 2011)). The challenge is no longer restricted to theindividual employer trying to arrange cover for the occasional female employee on maternity leave: ithas grown to encompass the social, political and personal imperative to make “two spheres of life[work and family] mutually compatible” (Council conclusions p.6). The benefits are no longerpresented merely in terms of individual employees or their families but the reconciliation of work andfamily now sits at the heart of EU policies for growth and inclusion, central to the achievement ofincreased employment targets (Europe 2020 growth *Emp. L.B. 3 strategy) and a key strategy forPage1tackling problems associated with demographic change.If success was measured in terms of the number of statutory provisions and the volume of policydocumentation, then we might be forgiven for thinking that the ideal of work/life balance had becomea reality. Over the last 20 years or so, there have undoubtedly been improvements and manyindividual employees, dependants and businesses, benefit from greater protection of employmentrights and flexibility in working practices. Despite legislation having been in place now for some time,there remains considerable workplace evidence of pregnancy and family-related discrimination anddisappointing take up of family leave. The stereotypes of men as full-time permanent employees andwomen as part-time workers with interrupted career paths have been challenged but the ideal of fullyflexible worker/carers remains a work in progress. But what of the picture from the other side of thebalance: the sphere of families and family law? The European Foundation for the Improvement ofLiving and Working Conditions (“Eurofound”), Second European Quality of Life Survey: Family Lifeand Work (Eurofound, 2010) at p.2 found that:“Europeans are more dissatisfied with the amount of time they spend with their family than with theamount of time spent at work, family life being more adapted to employment requirements than workarrangements are to family life.”Undoubtedly there have been improvements in family-related employment rights but the real test ishow they work in practice. No matter how reasonable and generous the rights may appear, they areonly likely to be of long term benefit if they accommodate at least some of the practical challenges ofreal, every day family life.For the work and family agenda to achieve its full potential, change is required not only in theworkplace but also in the family. One of the apparent benefits of modern parental or family rights asopposed to previous maternity rights is that they challenge an entrenched view that childcare is theresponsibility of the mother. While there have undoubtedly been changes in family life in recentdecades, they may not be as significant as we have been led to expect. A recent EuropeanCommission report into The Role of Men in Gender Equality - European Strategies and Insights(European Commission, 2013) found evidence of “a remarkable change in men's participation in care”but only “in certain parts of Europe” (p.7) and even then, the position remained that “men with youngchildren continue to have higher employment rates compared to those without children, while forwomen the opposite holds” (p.5). There are differences across Europe and the reasons andmotivations are complex but the evidence is clear that, despite some change, family roles and familyresponsibilities remain gendered. A recent study in Scotland of separation agreements (J. Mair, F.Wasoff and K. Mackay, All settled? A study of legally binding separation agreements and privateordering in Scotland ( 2013)), for example, showed that, of those couples who made arrangements forpost-separation childcare, 90 per cent agreed that residence of the children would be with the mother.To some extent in contradiction of the high media and policy profile of shared parenting, and despiteemployment policy which seeks to promote shared roles, practical responsibility in many casesappears to remain with mothers. There is a danger as employment rights expand and improve, andas policy becomes more ambitious, of assuming that work and family balance is within the reach ofmany employees. The effectiveness of employment law and policy must be assessed realisticallyagainst the background of family life, which may not be as equal as we sometimes assume.Much of the focus of the work and family agenda has been on facilitating parents and other familymembers in maintaining and improving their access to employment. The Resolution of the EuropeanParliament 3 February 2009 on non-discrimination based on sex and intergenerational solidarity(2010/C 67 E/05) offered a clear example of this work-centric perspective. With reference to the factthat women with dependent children had only a 62 per cent employment rate, well below the Europe2020 target of 75 per cent, it was commented that “from the point of view of sustainability, it isintolerable to allow the resources in question and their potential to go to waste”. From the feministcalls of the seventies for wages for housework to the recent media storm over coalition proposals fortax free childcare, and Nick Clegg's radio encounter with a “stay-at-home mum”, the issue is thesame: childcare and domestic work remain undervalued and often invisible within economic policyand political debate. Nicole Busby in her book A Right to Care? Unpaid Care Work in EuropeanEmployment Law (Oxford University Press, 2011) has argued that, in tandem with the right to work inEU law, there should also be a right to care.Caring, traditionally, has had its place within the family but as the focus shifts to facilitatingparticipation of both men and women in paid employment throughout the life cycle, unpaid care isincreasingly invisible (although at the same time, in the market, care as a service for sale continues toPage2grow). Working parents may be given short term concessions at work in order to *Emp. L.B. 4facilitate their caring responsibilities but in the long term it is their participation in paid employmentwhich is valued. Scots family law might be argued to undervalue care, particularly in its statutoryframework for financial provision on divorce. The Family Law (Scotland) Act 1985 favours a financialclean break on divorce with limited scope for ongoing maintenance payments between ex-spouses.Even where one has been dependent on the other during marriage, most likely a wife with childcareresponsibilities, a maximum readjustment period of three years is envisaged to allow her to becomeself-supporting (s.9(1)(d)). This system of family law reflects an employment model of equalopportunities and easy combination of work and care which for many remains more an aspiration thana reality.Work/life balance or the reconciliation of private and professional responsibilities cannot be achievedby employment rights alone and family law should be wary of assuming that workplace equalityexists. Each sphere needs to be aware of what is happening in the other. Changes in workplaceorganisation and employment rights must be matched by changes in family life if old stereotypes areto give way to modern ideals.Emp. L.B. 2013, 117(Oct), 2-4© 2014 Sweet & Maxwell and its ContributorsPage3

An ideal balance?

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