Challenging and reforming pregnancy-parenting/ workplace regulation

Challenging and reforming pregnancy-parenting/ workplace regulation

In a changed world – one in which women were valued as earners and men as carers and both could choose to engage in the care-giving without costly employment penalties – how would men and women choose to allocate their time between the market and the home?

(Gornick and Meyers 2003:104–5)


As chapter 1 demonstrates we are witnessing transformations in the way that two-parent families engage with, or want to engage with, the workplace and in terms of how they want to divide their unpaid care work. Although no single dominant ‘new’ model has emerged, an increasing number of families are clearly moving away from the traditional male-breadwinner/female-carer model, and this development in social norms is a trend that looks set to continue across Europe (see Dulk, Pepper and Doorne-Huiskes 2005). These transformations have the potential to impact upon the everyday lives and individual identities of both mothers and fathers. Attitudinal studies demonstrate an overall growth in support for a mother’s participation in the workplace (see Crompton 2006; Crompton and Lyonette 2008; Himmelweit and Sigala 2003) and this is reflected in women’s behaviour as more mothers than ever before are now involved in paid work. Thus, experiences of motherhood nowadays often encapsulate a widely accepted and often crucial element of paid employment. It ought to be remembered, however, that the basic demands of childcare have not decreased and parenting is, in many ways, a more intensely demanding role than ever before (see chapter 1 and Hays 1996; Douglas and Michaels 2004; Ferudi 2002).

As women’s contribution to the labour market intensifies, fathers are increasingly encouraged to play an active role in children’s upbringing. There has been a broad change of emphasis in relation to the importance of fatherhood in a child’s life, including psychological evidence that loss of this relationship can cause harm, and concerns in family law about preserving contact or access upon relationship breakdown (see Smart, Neale and Wade 2001). There is evidence that men increasingly value the time they are able to spend with their children, suggesting that for an increasing number of fathers their desires and identities are shifting so as to include more caring responsibilities (see chapter 1 and Lewis 2000; Hatten et al. 2002 and O’Brien 2005 – discussed in Caracciolo Di Torella 2007 and Kilkey 2006). Although a broad and dramatic shift in the actual care-giving behaviour of fathers has yet to materialise, evidence suggests that the levels of traditionalism in the domestic division of labour are changing, especially where women in the partnerships are employed full-time (Crompton and Lyonette 2008). Just as the dominant ideology of motherhood now embraces her worker identity, albeit secondary to her caring role, the dominant ideology of fatherhood is very slowly metamorphosing so as to include a caring role, albeit secondary to his breadwinner role (see further chapter 1). Overall then, there is a slow but significant transition occurring within families towards more diverse and less traditional ways of managing the responsibilities and pleasures of family and workplace commitments. The new utopia for an increasing number of families involves lifestyles in which both mothers and fathers can fulfil their individual potentials as parents and workers (on the growth of individualism in families per se, see chapter 1 and Giddens 1992; Beck and Beck-Gernsheim 1995; Lewis 1999 and 2001).

Less traditional work/family lifestyle preferences challenge employers in terms of how they manage the impact of pregnancy and parenthood upon their businesses and these transformations within families occur in the context of an ever demanding global economy (see chapter 1). Employers can either accept growing demands amongst parents (and workers in general, for that matter) for a greater work/life balance (see Glover 2002), or create organisational obstacles through the perpetuation of managerial strategies that increase work intensity and reduce the abilities of individuals to negotiate their work/family responsibilities. Fortunately, for employers who accept the growing desire for negotiation of work/life boundaries there is a wealth of opportunities in workplace structuring, driven primarily by technological advances which, in some industries at least, open up possibilities regarding how, when, where and by whom work is conducted (Drew et al. 1998:4). In turn, policy makers are also challenged, by changes in workers’ attitudes and preferences, in terms of how they regulate pregnancy and parenting in the labour market (Crompton 2006:60–1). Of course, law alone cannot facilitate, or indeed otherwise control, the revolution occurring within families. However, despite its limitations, effective legal regulation can be instrumental and in our context has a crucial role to play ensuring that the variety of parental needs and preferences, traditional and non-traditional, are met. In order to do this the relevant law needs to be progressive and refuse to be restricted by the ‘business lobby’ (Conaghan 2002:70); it needs to be reflexive (see Ayres and Braithwaite 1992; Teubner 1983) and responsive to the needs of the cohort it seeks to protect. Only then can it create a space within which mothers and fathers can renegotiate their own parenting/workplace relationships. In essence, this requires the promotion of genuine choices which in terms of actual reforms, it will be argued below, primarily requires a refocus of attention so as to enhance the rights of working fathers to take leave post-birth and the rights of both parents, and indeed all workers, to work more flexibly where it is feasible to do so.

In terms of promoting an effective legal evolution, family-friendly policies are only one part of any legal response. Whereas pregnancy-parenting/work-place disputes, which are at present inherently gendered, will only really be challenged if policies provide mothers and fathers with relevant legal rights. These rights must be supported by laws that protect the most vulnerable of workers in this myriad of family/workplace relationships from unfair treatment at work, and to do so in a meaningful way that promotes their wellbeing and remains sensitive to their difficulties and dilemmas. Reform of this aspect of the regulation is needed in order to tackle the huge litigation gap uncovered by the tribunal study and EOC research (see chapter 2). Reform at this level involves alterations to relevant laws applicable in the event of conflicts as well as more guidance in terms of how the law is to be applied and a reconsideration of the applicable procedural hurdles.

The need for and the shape of these legal reforms is reflected upon further in this final chapter, which is divided into two main parts; the first section investigates the need for better ‘enabling’ family-friendly policies as a whole, ones that are able to facilitate genuine choices for both parents; the second section considers the related need for better protective laws and rights to provide those who choose to litigate in the event of wrongdoing, with a realistic and meaningful opportunity to gain legal redress. Both aspects of this engagement demonstrate the flaws of current approaches and frameworks and re-emphasise the need to fundamentally revise the parameters of this discipline (Conaghan 2005:42), to re-examine the foundations upon which we base family-friendly legislation, especially regarding the perpetuation of motherhood and fatherhood ideologies (see chapter 1 and McGlynn 2001), and the need to embrace changes in social behaviour that are already occurring within families.

Family-friendly policies: promoting genuine choices

Choices relating to divisions of work and care responsibilities are not made in a social vacuum and before outlining what legal reforms are needed, two initial points need to be highlighted. Firstly we ought, in proposing reform, to remain sensitive to the fact that the notion of ‘choice’ itself is inherently problematic, as it immediately assumes a level playing field from which choices are made. This assumption is, as Crompton points out (Crompton 2006:52), a false one because although most parents seek to balance work and family life, their ability to do so is fundamentally dependent upon their circumstances. For many, economic realities mean that the notion of ‘choice’ is a luxury that simply does not apply to them (Crompton 2006:60). Choices are influenced by a number of interrelated factors: these include individual lifestyle preferences (Hakim 2000), geographical location and occupational constraints (Crompton and Harris 1998). In addition, choices in relation to employment and caring are often shaped by ‘moral and socially negotiated (not individual) views about what behaviour is right and proper’ (Duncan et al. 2003:310 and Duncan and Edwards 1999). Any discussion of choice needs also to appreciate ‘the ways in which habit, fear, low expectations and unjust background conditions deform people’s choices and even their wishes for their own lives’ (Nussbaum 2000:114 cited in Crompton 2006:13). Class processes can also influence attitudes and employment behaviour (McRae 2003 and Crompton 2006:52) and ‘the characteristics of working-class jobs are more likely, in aggregate, to result in people in such jobs putting a greater emphasis on their families than people in more rewarding jobs’ (Crompton 2006:55). The promotion of genuine work/family choices for all families arguably requires wider shifts in attitudes and socio-economic developments, but these individuals’ constraints ought not to deter policy makers from supporting the wider development of choices for those who are able to take advantage of them. Indeed, this process is necessary in order to shed more light on ways, legal and non-legal, of engaging with those families for whom real choices are not available.

Secondly, in relation to promoting choices, it is certainly not for law to dictate what family model is best. The purpose here is not to promote a particular model of family household arrangements but to accept that there is huge diversity in terms of how families prefer to divide their time and to challenge the current framework which, by according mothers legal privilege in relation to the ‘family-friendly’ rights available, reinforces an outdated view that the more traditional model is morally superior. Law, especially when engaging with families, ought to be reflexive not prescriptive and should, in our context, allow parents to construct, deconstruct and reconstruct their own family models, as far as they are able to do so. McGlynn advocates a similar pluralist approach in relation to EU law and the family (McGlynn 2006). Drawing on Rawls’ theory of pluralism, she highlights the importance of promoting respect for ‘individual difference and different moral positions, that requires citizens to converse, respect each other and engage in dialogue in seeking an overlapping consensus and that provides the foundations for a “well-ordered” society, without a top-down imposition of moral standards’ (McGlynn 2006:7). This notion is appealing in our context because it encourages us to embrace the plurality that exists within families in relation to how they organise their time and to allow parents to manage commitments in a way that suits them. It also challenges assumptions that mothering is preferable to fathering (see McGlynn 2006:39) or, indeed, that there is a ‘correct’ way to care for and raise our children. Fragmentation is not to be avoided in this context, but is best viewed as socially enriching and expected.

In this vein, family-friendly laws, in order to develop beyond the current package of superficially appealing but fundamentally restrictive rights, which perpetuate dated ideologies of motherhood and fatherhood, require a push to promote such genuine choices so that parents might be placed in a position to better negotiate their workplace relationships in a way that suits their individual and family desires and needs. What then might this mean in practice? Crompton’s framework (see Figure 6.1), depicting a continuum of household arrangements, provides a useful indication of how families might choose to organise their paid work and caring responsibilities so long as their context enables them to do so (Crompton 1999:205). Crompton suggests a continuum from ‘traditional’ to ‘less traditional’ models of household arrangements and explains how these manifest themselves in relation to the way earning and caring is divided in gender terms. At the one extreme is the traditional ‘male-breadwinner/female-care-giver’ model, characterised by a traditional division of labour. This is juxtaposed with the next model, the ‘male-breadwinner/female part-time carer’, which, although a departure from the first household arrangement, does not transform gender divisions of labour because it endorses women’s responsibility for household chores and childcare (Crompton 2001:267). In fact, this second model perpetuates the ‘second shift’ dilemma (Hochschild 1989), whereby women continue to be the primary carers despite their contribution to the breadwinning element of family life (see also Crompton and Lyonette 2008).

As depicted by the ‘dual earner/state care-giver’ arrangement, movement towards a less traditional model is feasible if both parties work full-time and alternative childcare facilities are available, either in terms of provisions that are state funded (as in Denmark or Sweden) or privately funded (as in the USA). The final movement towards a less traditional model, that of the ‘dual earner/dual care-giver’ model, requires the greatest leap of all, a household arrangement where both parents are involved in paid work and both contribute equally to the care-giving demands of the family. The more traditional the family model, the less intervention required by law but, as one might expect, the less traditional and more equal the divisions of labour, the more legal intervention is required to facilitate the model. If, as is argued in this book, we view law as a useful facilitator of social normative developments it needs to reflect the varieties of earner/carer preferences that exist, or might emerge given the right legal framework. This involves the development of a set of clearly expressed parenting rights that individuals can apply to their own lives. This way, those wanting to adopt a more traditional male breadwinner/

Figure 6.1 Gender relations and household arrangements (Crompton 1999).

female carer model are able to do so, but those choosing a less traditional model are not restricted by the legal framework.

In the UK, most working mothers work short part-time hours, although the number of women in high-status jobs who are working full-time is increasing (Brannen 2000). It may be that the majority of working mothers in the UK has genuinely chosen to work part-time and prefers the traditional male-breadwinner/female carer model. Hakim’s lifestyle preference theory offers an interesting explanation for what she views as ‘women’s continued reluctance to be main providers’ (Hakim 2005:66). Hakim has suggested that women, in terms of their lifestyle preferences are either ‘home-centred’, ‘family-centred’ or ‘adaptive’, and moreover, that ‘differences between men and women in work orientations will persist to some extent in the twenty-first century in their attitudes, values, life goals and behaviour’ (Hakim 2005:55; see also Hakim 2000). Given the increasing need in families for two incomes and the government’s aim to increase women’s participation in the labour market, if women’s preferences exist in the way that Hakim suggests, it may be that the male-breadwinner/female part-time earner model is one that provides the most realistic compromise for all parties.

If Hakim’s preference theory is truly reflective of women’s lifestyle choices in the twenty-first century, then legal intervention of the kind advocated in this chapter (see below) will have very little impact on actual behaviour. Indeed, Hakim’s rationale is appealing, not least because it requires so little legal intervention. However, it offers a simple assessment of women’s choices regarding their employment and caring responsibilities. Firstly, it fails to appreciate the difference between behaviour and preference and a choice and a preference (on the latter see for example Dulk et al. 2005:20) and the way that these are shaped, enabled and constrained, by the relevant context within which, and by whom, it is made (see above). It assumes, as Gornick and Meyers state, ‘that observed behavior reveals intrinsic preferences’ and fails ‘to acknowledge the extent to which the decisions that flow from them are socially constructed’ (2003:104). Secondly, it underestimates the potential for lifestyle preferences to alter across time and hence, denies parents the opportunity to evolve. Thirdly, to prescribe little legal intervention to promote models beyond the male-breadwinner/female part-time earner model only discourages advances in terms of rebalancing the gendered division of household chores: this model perpetuates situations where women take on the majority of household tasks, increasing the risk of individual work/life conflict for these women (see Crompton 2006: chapter 5 and Crompton and Lyonette 2008). Besides, whilst some families may choose this model, in line with Hakim’s theory, of particular concern in this book are those families for whom traditional models are the only real choices available to them because they are restricted by laws which inherently overemphasise and sanction stereotypical attitudes about the innate caring nature of mothers and under-emphasise the abilities of fathers to care and nurture, restricting ability to (re)negotiate household and working arrangements so as to promote a less traditional division. For this cohort the current legal provisions offer little hope, yet by refocusing attention the government could enable these parents to make the choices they want. Firstly, the lack of provisions available to working fathers is a huge obstacle to genuine lifestyle choices. In the UK then, law’s contribution to the promotion of genuine choice and gender equality requires an injection of father-friendly rights.

Father-friendly rights

At present, as explained in chapter 3, mothers are entitled to 12 months’ maternity leave following the birth. This is paid at earnings-related level for six weeks and SMP level for nine months, although the government has announced a desire to extend SMP to the full 12 months in due course. Fathers are entitled to only two weeks’ paternity leave, paid at an equivalent to SMP rate and restricted to ‘eligible’ fathers with 26 weeks’ continuous length of service. Its original framing, in terms of leave to ‘care for the child and support the mother’ (s 80 ERA 1996 as amended) is indicative of its weakness (James 2006). There is a clear imbalance that needs to be resolved. As a minimum, fathers ought to be awarded the same opportunities as mothers regarding leave entitlements post-childbirth. One appealing option, currently proposed by the government, is to allow the transfer of some of the maternity leave entitlement to eligible fathers. As stated in chapter 3, this might help to cultivate genuine choices but for the fact that its availability is linked to the mother’s entitlement, and hence mother’s agreement, and that it is a highly inflexible scheme (see Caracciolo Di Torella 2007 and Kilkey 2007). A better option for reform involves the introduction of more father-specific rights, perhaps six weeks’ leave available to fathers after the birth of the child. This would need to be paid and the pay would need to be earnings-related, but it would better mirror the earnings-related leave currently available to mothers. If this were to be offered in addition to the transfer option, more fathers might be willing to move away from their ‘safe harbours’ of workplace identification and further explore their care-giving potential.

Lessons can be learned from elsewhere. In Sweden, mothers and fathers are able to share parental paid (at 80 per cent of earning) leave entitlement following birth, but fathers are also awarded a months’ paid leave that cannot be transferred and will be lost if not taken. This is aimed at stimulating take-up and encouraging a more equal division of care duties (see Devan 2005; Dulk et al. 2005:23; Plantin et al. 2003; Rostgaard 2002). The UK is nowhere near as advanced in this area as Sweden and other Scandinavian countries so we can learn a lot from their experiences. This gender-specific leave is important because even in Sweden, a country with a long history of family-friendly legislation and one that values and encourages a father’s active involvement in childcare, some fathers are still reluctant to take leave (see Devan 2005). This decision, to take leave or not, appears to be influenced by a number of interrelated factors including the age of the child and the ages of the parents, support of partners (Maurer et al. 2001 and Palsey et al. 2002), organisational demands and workplace cultures (Cunningham 2001), attitudes of senior managers, supervisors and co-workers (Judiesch and Lyness 2000) and father’s identification with work and his attitude towards gender role ideology (see Devan 2005). It seems that the work-orientation of fathers is something that might also hinder take-up especially as, not surprisingly given the dominant fatherhood ideology, the workplace attachment of fathers is fairly strong (O’Brien and Shemilt 2003 cited in Kilkey 2006), but this is not an adequate reason to avoid investment in improving fathers’ family-friendly rights. It ought to be remembered that attitudes about gendered roles have closely followed actual changes in women’s employment behaviour (Crompton 2006:44; see also Himmelweit and Sigala 2003), suggesting that an increase in a father’s ‘actual’ care-giving, which this type of law reform could facilitate, might help promote further acceptance of less traditional household models.

There are of course further related reasons for promoting reform of this nature. In practice mothers continue to carry a greater burden in relation to care-giving, yet are increasingly participating in, either because they are wanting to or having to (or both), paid employment. Hence to facilitate this movement in mothers’ identities and enable a more just division of paid and unpaid labour, laws need to support less traditional models and this requires direct encouragement of fathers’ active participation in the home, otherwise we risk undermining progress already made in terms of the promotion of substantive gender equality. We should not underestimate the importance of quality father-friendly legislation upon this aspect of life, as it erodes any assumption that male workers have no caring obligations. By endorsing a father’s role as a parent, the legislation outwardly challenges any views that parenting is an instinctually and naturally ‘female’ task. This provides the impetus to adopt a new genderless discourse when discussing parenting and allows, where wanted and feasible, movement towards Crompton’s dual earner – dual carer model (see above), under which ‘parenting would be degendered: fathers and mothers would share responsibility for earning and care-giving symmetrically, with support from both employers and society more generally’ (Gornick and Meyers 2003:12).

So long as take-up by fathers is forthcoming, there is the ability to readjust the way that new mothers, pregnant workers and indeed all women of childbearing age, are perceived in the workplace. The comments of the likes of MEP Godfrey Bloom and Sir Alan Sugar (see chapter 2) would be invalid in a society where all working, or ‘would-be’ working, parents, not just the female ones, are potentially perceived as ‘problematic’. If both mothers and fathers are equally capable of disrupting the workplace equilibrium, if only because laws permit both parties to do so, the onus is on the employer to reconsider how this rather large cohort of workers is to be accommodated. If the encumbered worker becomes the norm, motivation to better understand the needs of this cohort and to develop better family-friendly (and for that matter, broader work/life) policies is increased. In addition, drawing more fathers, and expectant fathers, into the cohort of workers who are perceived as potentially ‘encumbered’ may help reduce the number of female workers who are singled out for poor treatment on the grounds of pregnancy or childbirth, if only because it forces employers to reconsider their approach to the issue as a whole.

This utopia, however, requires a wholehearted acceptance of this social transformation by employers and is, given the hostility with which previous reforms have been met, unlikely to transpire across all industries in the UK. The picture is more likely to be patchy and will require monitoring and an ongoing political commitment to the establishment of a truly family-friendly market. Fathers’ take-up of rights may be low, especially amongst certain cohorts of fathers where, for example, the male identity is challenged by association with care-giving roles, and mothers may continue to carry the main burden of reproduction and its consequences for workplace equilibriums. Furthermore, some employers may simply include fathers who attempt to initiate a renegotiation of their working conditions so as to allow for parenting responsibilities within the same category of ‘problematic’ workers as expectant and new mothers. These ‘new fathers’ may well become as ostracised as some pregnant workers, and poor employers may be as willing to gamble on the likelihood of litigation in this context, as they are in relation to pregnancy/workplace conflicts. To be blunt, in the latter situation the gamble, as the ‘litigation gap’ demonstrates, often pays off, so any market-driven cost-benefit risk analysis of the situation would severely compromise the impact of legal reforms, because discrimination in this context may still be perceived as economically rational (on the economic rationality of pregnancy-related discrimination, see Foubert 2002:1).

Potentially detrimental consequences of this kind ought to have an impact on the way that the laws are introduced and monitored, but ought not to govern the shape and nature of any genuine increase in father-friendly employment rights. It is necessary to rebalance the current framework and provide genuine choices to families, especially those who are wanting to move away from the more traditional models of household organisation. In addition, in order to ensure that the opportunity to share responsibilities at home and move away from the traditional family model is not ring-fenced around the birth and first year of a child’s life, it is also essential that laws are enacted which enable choices in relation to the division of labour to continue post-leave entitlements. Hence, the facilitation of real choices, and the related promotion of substantive gender equality, also requires a stronger commitment to enhancing the right to work flexibly.

Flexible working

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