Exploring pregnancy, parenting and employment in the twenty-first century
If the tensions between the demands of capitalist employment and the requirements for care can no longer be resolved via the domestication of women, then contemporary societies will have to seek new solutions.
Transformations within workplaces and families
There are two interrelated and inter-dependent contexts for this book’s exploration of labour law’s engagement with pregnancy and parenting: workplaces and families. These two contexts are and always have been interdependent, although government’s official rhetoric often suggests otherwise, by promoting policies as though they are a response to the (relatively) recent demographic changes that have shifted women from the private sphere of the home into the public space of the labour market (see Conaghan 2005:27–28 and fn 37). The transformations within both of these contexts have been significant in recent years, but neither ‘spaces’ are static; both are in a state of flux, continually shaped by and impacting upon each other in ways that have consequences for all parties who operate and develop within them. The transformations as a whole raise numerous challenges for parents, primarily in terms of how they are able to manage their responsibilities as unpaid care-givers and paid workers, challenges that often arise and require choices to be made as soon as a pregnancy is confirmed. Even the announcement of the latter, before any dependent child appears, can, as this book will explore, detrimentally impact upon workplace relationships, to the point of relationship breakdown. The transformations also pose relatively new challenges for employers, especially in light of the increasing number of women participating in the workplace, in terms of how they manage the impact of pregnancy and parenthood upon their businesses and, at a wider level, in terms of the assumptions they are now able to make about the people, female and, increasingly, male, they employ. Policy makers are also challenged as they can no longer assume that care-giving can be, or will be, provided by women in the home on a full-time basis, and hence the government is increasingly required to (re)consider how it regulates pregnancy and parenting/workplace relationships in particular and, for that matter, work/life balances in general.
The first context for the book is the changing face of the labour market and the consequential demands and restrictions it now places upon its workforce, and working parents in particular. We are now experiencing what has been termed the ‘new economy’ (see Conaghan et al. (editors) 2002). The market today no longer follows the Fordist model of employment relationships which offered (male) jobs for life with standard working hours and widespread union support for periods of individual or collective discontent. The decline of manufacturing industries, together with technical advances, managerial innovations, increased foreign investments and the development of multinational enterprises manufacturing in cheaper developing countries, and cross-border labour migration, aided by huge technological and transportation advances, have all played a part in altering the way that work is now organised, produced and regulated (see D’Antona 2002 and Klare 2002). The labour market is now challenged and shaped by global expectations, with many industries increasingly driven by the need for ever speedier transactions across various time zones.
This ‘new economy’ has transformed the roles and experiences of many individual workers as the employment relationship has become more precarious and intense (Fudge and Owens 2006). It has been suggested that the bonds and mutual trust, once implicit within many employment relationships, have been eroded (Sennett 1998:27 cited in Crompton 2006:5). De-layering and reorganisation, downsizing and outsourcing, the need for leaner organisations (Womack et al. 1990 cited in Crompton 2006:5), target-setting and rescheduling of worker availability inherently characterise many workplaces today. Changes have created demand for more flexible or atypical workers who are, for example, willing to retrain as needed, to work outside ‘normal’ (9–5) contracted working hours, to work from home or on a part-time or temporary basis. Furthermore, the age of the workforce in the UK is now higher, and the looming ‘pension crisis’ has led to an increase in the age of retirement, meaning that today’s workers may well need to remain in the labour market beyond what is generally regarded as the normal retirement age in order to support the ‘new economy’ and avoid poverty in old age. In addition, for many, the increasingly long hours demanded by employers, especially when coupled with competitive workplace cultures and strategies which often link pay to performance and set high targets in order to increase outputs, means that individuals, especially fathers of young children and those in professional and managerial employment, often work over and above what is considered reasonable (Bishop 2004). For those in more precarious employment this need to work longer hours is compounded by the low rate of pay, regulated by national minimum wage legislation, because it prevents many workers from reducing hours without incurring major financial penalties, ensuring a compliant workforce with little ‘real’ alternatives but to work whenever work is available, and for as long as they are needed (see Conaghan 2002:62). These transformations arguably create a more intense day-to-day work experience and cause increased instability and a decline in settled career paths. Furthermore, within this context, workers who want to progress must increasingly rely on their own initiative and be more willing to change jobs and location in order to do so (Crompton 2006:5). This in turn can create higher staff-turnover in certain industries or at certain levels of industry which can, in turn, make employment relationships more difficult to manage. In addition, and of particular concern in this book, as Gallie notes, the ‘sharp intensification of work effort’, which is evident across the EU, poses ‘serious risks of work stress and tension between work and family life’ (Gallie 2002:97, cited in Crompton 2006:124).
Of course, one of the most important transformations in terms of the market’s workforce, and one that is of particular contextual interest for this book, is the huge increase in the number of women now active in paid employment. In the UK in 2007, 70 per cent of women of working age were in employment (Social Trends 2007:49), compared to 56 per cent in 1971 (see also Duffield 2002), a rise mirrored in other EU Member States (pre-May 2004) where an estimated six million of the 10 million jobs created between 1997 and 2001 were occupied by women (European Commission 2001), the greatest leap in the figures being amongst women of childbearing age. Indeed, in the UK the number of employed women with pre-school children has risen dramatically, from 28 per cent in 1980 to 53 per cent in 1999 (Desai et al. 1999). Significantly, whilst the changes brought about by a globally competitive market have clearly had an impact on all workers, in many ways women have tended to bear the brunt of these developments. It is, for example, women who dominate the sectors of the labour market that are developing fastest (such as the service industry) and that offer the lowest remuneration (care work and the service industry). Women are still, partly as a result of job segregation and partly as a result of sex discrimination, paid significantly less than men for the work they do. Mothers are often obliged to work unusual hours in order to fit their labour market participation around childcare. The ‘flexibility’ required by the labour market can actually conflict with the needs and desires of working parents, and can ultimately exploit women’s labour market power by providing them with little alternative but to work hours (which may include night shifts and weekend work) which fit around childcare needs (see further Cockburn 1991, discussed in Caracciolo Di Torella 2001:330). It is mothers who are thus most likely to be employed in the precarious, atypical work that binds the ‘new economy’ together (see Fudge and Owens 2006): nearly 40 per cent of women aged 16–59 with dependent children work part-time (see Social Trends 2005, cited in Lewis and Campbell 2007:10), and a recent study shows how, following childbirth, many professional and managerial women downgrade to lower-skilled part-time work (Gregory and Connolly 2008).
Furthermore, as stated above, women have long supported the labour market by providing unpaid care in terms of domestic labour and reproduction (Conaghan 2002), and this they have done irrespective of their involvement in paid employment. Despite the erosion of the traditional male breadwinner/female care-giver model of household relationships across the industrialised world (see Crompton 1999), and that both parents often need to contribute to household finances (see below), there has been no corresponding shift in relation to the gendered burden of household chores and care-giving responsibilities (see Brannen 2000; Brannen and Moss 1991; Crompton 2006: chapter 6; Gregson and Lowe 1994). Hence women, and especially working mothers, often take on a ‘second shift’ (Hochschild 1989), by caring for the family and participating in the labour market. In so doing they are supporting the ‘new economy’ in ways that may cause them individual work/life conflict (see Crompton 2006: chapter 5 and Crompton and Lyonette 2008) and in ways that often go unrecognised and undervalued, but, as more women, and particularly mothers of pre-school children, participate in paid employment, as Conaghan points out, ‘the implicit relationship has become explicit to the point at which it is required to undergo a process of substantial renegotiation’ (Conaghan 2005:29).
The second context for this book is transformations that have occurred ‘within’ family units. Many changes have occurred in relation to family forms, the expectations of its members and how its functions are managed. In terms of family construction, boundaries are nowadays both ‘flexible and permeable’ (McKie et al. 2005:13), or at least the diversity of family form in society is now more transparent given that those functioning outside of the traditional family unit attract less stigma (McGlynn 2006:28). There has, for example, been an increase in the number of heterosexual couples cohabiting, with 36 per cent of the public having been in a cohabiting relationship and 11 per cent of people currently cohabiting (Barlow et al. 2008). In fact 25 per cent of all children are now born to cohabiting couples (National Statistics 2005), indicating that for many, parenting is no longer synonymous with marriage, and the fact that divorce is now more common increases the number of lone parent families as well as step- and non-resident families.
In addition, it has been suggested that the nature of intimate relationships has evolved. They are now viewed by social theorists as less traditional, and increasingly characterised by individualism (see Beck and Beck-Gernsheim 1995 and Giddens 1992). For Giddens, this transition indicates more ‘pure’ relationships which are fluid and contingent and exist only to enable the parties to take advantage of the rewarding elements of the relationship (Giddens 1992). Others suggest that the transformations, the result of much more diversity within relationships and where individualisation shapes them, are simply reflections of the ‘normal chaos of love’ (Beck and Beck-Gernsheim 1995). At one level this new ‘culture of individualism’ is viewed as the rise of selfishness but, at another level, it can be viewed as a positive reflection of a societal shift towards more egalitarian partnerships (Lewis 1999 and 2001) where individual identities (be it as worker, mother, father, partner or whatever) and self-fulfilment (in the workplace and outside of the workplace) are growing in importance. However, to suggest that individualism drives all decision making or outcomes regarding identities and self-fulfilment underplays the role of other factors, such as gender, class, location, dominant ideologies and moral rationalities, themselves fluid and variable over time, in determining social positions and decision making (see Crompton 2006: chapter 1).
Family forms are now more diverse, and accepted as such. Individual expectations in terms of family relationships are clearly undergoing change. There have also been related developments in the nature of how families are actually expected to function. The primary tasks of the family unit remains to provide informal care, domestic labour and to socialise children (McKie et al. 2005:11) but this is nowadays characterised by greater demands and operates in a more expert-driven context. In essence, parenting has become more ‘paranoid’ (Ferudi 2002) and ‘intense’ (Hays 1996), and is often moulded by higher cultural expectations than was the case even a generation ago. For example, the growth of ‘parental determinism’, the idea that everything to do with a child is determined by the actions of his or her parents, nowadays places expectations at an unrealistically high level and ‘sets up all parents to fail by setting goals that cannot possibly be attained’ (Ferudi 2002:76). The growth in ‘parenting identity’, whereby parents increasingly live their lives through their children, competitive parenting and the professionalisation and politicisation of parenting all contribute to a growing paranoia (Ferudi 2007 and 2002). This ultimately provides a more demanding context for all those who parent, and mothers in particular, in the twenty-first century.
Ironically, despite these changes in relation to what form families take, how individuals within families are eager to mould their increasingly multifaceted identities and the intensification of parenting, the actual division of tasks between mothers and fathers in two-parent homes have, in practice, altered very little. The need to provide care and other domestic labour continues. Parents now however, in the light of increasing workplace participation of mothers, have to find new ways of managing their time so as to ensure that their work and family responsibilities are met. It is here that the gender inequalities within families are most obvious: men continue to exercise more power than women in familial relationships, not least because they are still less confined by the demands of domestic life and childcare and have greater access to and control over family finances (see Arber and Ginn 1995; Irwin 1999; Jamieson 1999). The dominant ideology of motherhood (see below) still operates as a restriction on women’s genuine choices and real, workerled, flexibility in this context. The gendered division of domestic labour has continued despite women’s workplace participation and women continue to take primary responsibility for the care of home and hearth, although there is evidence of some, albeit very slow, change (see Crompton and Lyonette 2008). For working mothers their ‘second shift’ (Hochschild 1989) often requires the creation and management of boundaries1 between the public and the private domains; boundaries which are ‘simultaneously sustained and challenged in and by daily life’ (Cunningham-Burley et al. 2005:27). It seems that working mothers use a number of strategies in order to ‘balance and weave’ together the often conflicting strands of their days (Hattery 2001). These include reducing the time spent in paid employment, getting up very early in the morning or working into the night, employing nannies and other domestic help, utilising family and friends, working non-standard hours and using public childcare facilities. These strategies need to be adapted as circumstances alter across time (see Brannen 2000; Hattery 2001; Houston and Marks 2005; Parcel and Cornfield 1999) and suggest that the ideal of a ‘dualearner-dual-carer’ family (a term developed by Crompton 1999; see also Gornick and Meyers 2003; see further, chapter 6 in this book) is still, for many, out of reach. Many mothers are, nowadays, ‘grappling with a “new motherhood” that retains traditional views associated with care for and socialisation of children, while embracing newer values associated with paid work, forming an independent and individual identity’ (Cunningham-Burley et al. 2005:27).
New family forms and transformations in the labour market have not altered the traditional gendered hierarchy when it comes to division of domestic labour (see further Crompton 2006: chapter 6). Having made this point, it is however worth noting that men are increasingly expected and, it seems, increasingly willing and wanting to contribute to this unpaid caregiving dimension of family life (see Collier 1999; Hatten et al. 2002; Lewis 2000; O’Brien 2005 and Warin et al. 1999; discussed in Caracciolo Di Torella 2007). Evidence suggests that fathers are contributing more in terms of time spent doing household chores but they start from a very low base (Brannen 2000:36; Gershuny 2000; Gershuny and Jones 1987) and their contribution is still, on the whole, mostly task-specific (Warde and Hetherington 1993) and small (Brannen et al. 1994). In terms of childcare, fathers appear to have increased their contribution in terms of involvement, but this tends again to be task-specific and involves contributing to the more pleasurable tasks of childcare, such as playing, bathing and taking the children out for the day (Wheelock 1990). Managing, organising and planning childcare and responsibility for the overall wellbeing of the child is still conducted, for the most part, by mothers (Brannen 2000:37; Brannen et al. 1994). For most families the gendered divide of housework and childcare is a disappointing reality, but it seems fair to say that we are in a period of flux and evidence suggests that the current social reality is capable of development. Such development does however require that fathers, as well as mothers, be given the opportunity to alter their paid work and care patterns (see Kilkey 2006). Although law is of course limited in what it can achieve, it is increasingly important, where possible, for law and policy to provide realistic opportunities for families to organise and manage their domestic and paid work time in a way that suits them, thus allowing those who want a more equal division of domestic labour to achieve it (see chapters 3 and 6).
The aims and structure of the book
This book principally asks what current law does and what law can and should do in an age of ‘intensive parenting’, continued gender inequalities at work and at home and a demanding ‘new economy’, to effectively regulate pregnancy-parenting/workplace relationships. As stated above, the points at which pregnancy, parenting and labour market participation intercept raise numerous difficulties and dilemmas for individuals and policy makers. For the purpose of this book, the legal regulation of ‘pregnancy-parenting/workplace relationships and conflicts’ focuses mainly on the rights currently available to pregnant workers and ‘new’ parents (unless otherwise stated), but of course parenting per se is an ongoing responsibility that has ongoing repercussions for work/family relationships and interactions over a longer time period than this book is able to explore. Although beyond the scope of this book, we ought not to allow current legally constructed boundaries to act as ‘limitations on our imagination’ (Fineman 1995a: 7) and further research is needed to explore the interception between parenting of older children and the labour market. In a similar vein, this book mainly considers the impact of relevant laws on two-parent families with children born to them, yet law’s impact on single parents or shared parenting families, as well as those with fostered, adopted or step children, is of growing significance and in dire need of consideration.
At its core then, this book, drawing on contemporary feminist and social theory insights (see below) as well as recent research, including original empirical data from a study of relevant employment tribunal decisions (‘the tribunal study’ – see chapter 2), aims to deconstruct law’s engagement with the interception between pregnancy, early parenting and the workplace. In so doing it reveals a fundamentally high level of pregnancy-parenting/workplace conflicts, the nature and implications of which are explored in order to highlight how childbirth can still cause tensions that upset workplace equilibriums to the point of relationship dissolution, impacting not only upon the lives of individuals but also upon wider political goals of social justice and substantive gender equality. Chapter 2 also exposes a ‘litigation gap’, a gap between the numbers of people experiencing conflict and the numbers seeking legal redress, which underscores the inability of the current legal framework to effectively regulate pregnancy-parenting/workplace conflicts.
The remainder of the book explores this ‘litigation gap’ further, considering whether, and if so to what extent, various aspects of law’s engagement with pregnancy and parenting/workplace relationships are responsible for it. This consideration offers a vehicle for investigating the legal regulation of pregnancy-parenting/workplace relationships, rather than the search for an ‘answer’. With this in mind, chapter 3 outlines and explores the broad policy framework aimed at reconciling the demands of pregnancy and parenting and the workplace. The importance of family-friendly policies and their ability to perpetuate or challenge dominant ideologies and social constructs (such as motherhood, fatherhood and the unencumbered worker – see below) are considered, as are laws which provide the mechanisms for legal redress if working relationships break down. The chapter, in seeking an explanation for the ‘litigation gap’ within the legal standards that are set by law, reveals a variety of flaws in the legal approach to pregnancy-parenting/workplace relationships which may contribute to restricting access to justice in this context. Overall, however, chapter 3 demonstrates a commitment to tackling the tensions caused by pregnancy-parenting/workplace interactions, suggesting that other attributes of the legal framework need to be explored. Hence, having considered the standards that are set by law, chapter 4 investigates the enforcement of relevant laws at employment tribunals and asks whether, in terms of application, the aims of the legislation are met so as to support the minority of women who do litigate following pregnancy and parenting/ workplace disputes. The chapter, drawing primarily on evidence from the tribunal study, reveals a lack of consistency in how tribunals approach pregnancy-related unfair dismissal claims. It demonstrates how tribunals can reinforce traditional assumptions about pregnancy and motherhood and how a restrictive approach can undermine claims and hence limit the current law’s ability to offer adequate redress. It also shows, in a more positive vein, how better approaches, which are more investigative in nature, are able to locate the dismissal in its appropriate wider social context, acknowledge the hidden nature of this type of wrongdoing and accommodate the particular, and in many ways ‘distinct’, experiences of those litigating following pregnancy-related dismissals.
Chapter 5 then examines procedural aspects of the tribunal system, and, through a discussion of time limits and (lack of) support structures, reveals its attempt to ‘fit’ pregnancy and parenting into the existing legal mould, with little consideration for the particular characteristics of the cohort it seeks to protect. Once again, here by highlighting the inadequacy of the mechanics of the law in this context, flaws in the law are evident, and its current ability to provide legal redress to individuals, and hence advance substantive gender equality, is called into question. The final chapter suggests what legal reforms and further research are needed in order to improve the current legal framework. Recommendations for closing this particularly acute ‘litigation gap’ are presented and the wider picture, taking into account lessons learned through the process of the book’s evolution, is re-examined. The latter, it is argued, involves promotion of access to ‘genuine’ choices in terms of how individuals manage their work and family responsibilities, the realisation of which could, in time, aid promotion of substantive gender equality.
The process of this exploration as a whole reveals various lacunae in the legal regulation of pregnancy-parenting/workplace relationships in general and conflict resolution in particular. Overall, the findings and wider discussions bolster feminist challenges to law’s innate claims to neutrality and rationality (see further Munro 2007: chapter 2) and the ability of legal rights, alone, to ever provide adequate solutions in this context (see for example, Fineman 1990 and Smart 1989). By primarily adopting a feminist standpoint epistemology, the discussions locate, reveal and provide an opportunity to challenge gendered aspects of law’s engagement with this topic. With this broad aim in mind, there are a number of interrelated theoretical issues that will inform, and are developed in context, throughout the book and these are outlined in the next section.