Legislation and policy
Promoting good pregnancy-parenting/ workplace relationships?
Changes in family life and working patterns are set to continue. In future we are likely to see an increasing number of women and men taking time out from the labour market to care for children or elderly relatives or both. At the same time, businesses will face increasing competition from emerging markets such as China and the rest of Asia. An ageing population and a decline in the number of people of working age across Europe will increase the need for a wide pool of skilled employees. The purpose of the Work and Families Bill is to respond to these changing patterns of employment to ensure that parents and others with caring responsibilities have genuine choices about how they balance their work and family life, to ensure that children get the best start in life, and to help business benefit from the widest possible talent pool.
(Lord Sainsbury of Turville, Parliamentary Under-Secretary of
State, Department of Trade and Industry introducing the Work
and Families Bill to the House of Lords for its second reading:
14 February 2006 Hansard, column 1090; emphasis added)
In an age of globally driven and highly competitive labour markets, where women are now viewed as an essential workplace commodity, many countries are grappling with the difficulties and dilemmas posed by the relatively new challenges of facilitating good family/workplace relationships through law. The approaches adopted in Scandinavian countries, especially Sweden, are often presented as the Holy Grail of family-friendly policies: in Sweden, for example, parental leave was introduced in 1974 and is paid at 80 per cent of earnings for 60 weeks. It can be taken by either parent, but each has the right to his or her own leave quota, known as the ‘daddy’ or ‘mummy’ months. In Sweden, the involvement of fathers is central and encouraged through policy discourse that values his care-giving potential (see for example Devan 2005; Dulk et al. 2005; Plantin et al. 2003). Other industrial countries, such as the USA and Australia, do not bode anywhere near as well (see for example Gornick and Meyers 2003). The latter has been struggling to find the most appropriate means of accommodating work and family for some time but, as yet, only offers a right to unpaid parental leave and then only to those with a year’s employment history. Women clearly take time away from the workplace following childbirth, but they are not entitled to maternity pay during this time, although there is a strong call that this reality of care-giving be recognised economically by the state (see HREOC 2007; see also Charles-worth and Macdonald 2007; Owens 2005).
When compared with approaches elsewhere, the UK government has at least demonstrated a broad commitment to reconsidering the childcare/labour market interface, as is demonstrated in the plethora of legislative activity in recent years and in the huge increase in state spending in this area (Lewis and Campbell 2007:4–5 and fn 2). In many ways the government has made significant inroads into regulating a relationship that is hugely challenging for any government. It is worth remembering that in the UK the family-friendly package has been developed against a backdrop of prior reluctance to legally intervene into what was considered to be a private family choice, and resistance from those who would prefer that government policies reinforce a more traditional family model and leave the market to regulate itself (see for example, Kristol 1998 and Fukuyama 1999, cited in Crompton 2001:269; Morgan 1995 and 1998).
This chapter explores the overall UK response, in terms of its family-friendly policy and relevant legislation applicable in the event of conflict, to the challenges posed by the need to accommodate families and workplaces. It is the first level of the book’s investigation of the way pregnancy-parenting/ workplace relationships are regulated, which seeks a better understanding of the gap between what laws provide and what happens in reality. Other important levels of this inquiry include the application of the law when relationships break down (see chapter 4) and the procedural mechanisms through which law is enforced (see chapter 5). This first level of inquiry is however, arguably, the most essential aspect as legislation and policy set the overall agenda. This agenda not only imposes a blueprint for regulating family/ workplace relationships whereby the legal rights available are constructed, defining who is and by implication who is not eligible, but also setting the standards by which our endeavours to create a society where competitive labour markets and the needs of families coexist, can be judged.
The chapter begins by considering current policy in relation to the promotion of work/family relations as a whole including the family-friendly package of employment rights available to working parents.1 This provides a narrative of the scope of the provisions and also provides a useful insight into the motivation for and approach to family-friendly initiatives and an indication of where boundaries are currently drawn in terms of public and private responsibilities. In addition, it provides an opportunity to consider how the legislation and policy construct and confine the concepts of fatherhood, motherhood and worker. The chapter then considers the legal framework applicable in the event of pregnancy-parenting/workplace conflicts. Here consideration is given as to whether the standards set by current law provide a framework relevant to the plurality of experiences of those whom it seeks to protect. In essence it asks whether and, if so, to what extent the current legal framework provides women who have been dismissed or discriminated against at work due to pregnancy or childbirth with a potential claim, on paper at least, against their employers.
Policy ambitions and the family-friendly ‘package’
New Labour came to power over a decade ago, in May 1997, ushering in a ‘new mood’ towards work (Collier 1999:167) and intent on improving work/ family relationships. The government’s political agenda, influenced by a wider movement towards work/family reconciliation at EU level (see Caracciolo Di Torella 2000 and 2001; Caracciolo Di Torella and Masselot forthcoming; Guerrina 2005; McGlynn 2006), quickly focused on family-friendly employment initiatives. The Working Time Regulations and the National Minimum Wage Act, both EU initiatives, were enacted in 1998 demonstrating a commitment to regulate the amount of time employees spend, or can afford not to spend, in the workplace. The Maternity and Parental Leave etc Regulations of 1999 (SI 1999/3312), implementing Council Directive 96/34/EC and introduced under the Employment Relations Act 1999 s76, improved maternity rights and introduced parental leave and emergency domestic leave provisions (for comment see McColgan 2000 and below).
This was quickly followed by a Green Paper, ‘Work and Parents: Competitiveness and Choice’ (Cmnd 5005 December 2000), which outlined more radical options to help the UK ‘achieve a society where being a good parent and a good employee are not in conflict’ (DTI 2000:1). These included proposals to simplify the overly complex maternity laws; the creation of a rights and responsibilities ‘charter’; the lengthening of maternity leave, and provisions to allow mothers and fathers to share this new leave entitlement as required; the widening of eligibility for maternity pay so as to include those on low income or women involved in informal or occasional pay; provisions to provide a set of equivalent rights for adoptive parents; the payment of parental leave and paternity leave; and the right to work reduced hours until the end of maternity leave if a mother chooses to return to work early or, more radically, the right for both mothers and fathers to work reduced hours once the maternity leave entitlement ends. Unfortunately, the Green Paper proved to be too contentious, and an inability to reach a consensus resulted in the creation of a government task force to resolve certain issues. The legislation that followed some time later in the Employment Act 2002, amending relevant sections of the Employment Rights Act 1996, was at best a compromise when contrasted with the original suggestions made in the Green Paper (see James 2001 and 2003). On a more positive note, it amended the existing maternity rights, introduced paid paternity and adoptive leave and, importantly, introduced a right for parents to request flexible working.
Despite the fact that the benchmark of family-friendly offerings was lowered during the consultation process, the government claimed that this 2002 set of reforms provided parents ‘with more choice and support than ever before to balance family and work in ways that benefit everyone’ (DTI 2003: Foreword). The government also promised that the 2002 changes were only the latest in a ‘step change in the level of support and choice available to parents’ (DTI 2003:23), and so in 2006 a further package of reforms, consolidated in the Work and Families Act 2006 (in force April 2007) and the Maternity and Parental Leave etc. and the Paternity and Adoptive Leave (Amendment) Regulations 2006 (SI 2006/2014) were introduced (see James 2006 and 2007b). This latest legislation further extends maternity pay and adoptive pay entitlement; confers powers to increase paternity pay and leave entitlement, which it promises to do before the end of parliament; extends the right to request flexible working to carers of adults and introduces ‘keep in touch’ days which allow women to work up to 10 days during their maternity leave without losing their entitlement to statutory maternity pay (regarding the latter see James 2007).
The overall family-friendly policy packaging provides an interesting insight into how ‘the work/family problem’ has been constructed at each point in its evolution in the UK. To begin with, the dilemma was couched in terms of promoting ‘flexibility and fairness’, but since 2000 ‘flexibility and choice’ have been the main focus of the policy (see Lewis and Campbell 2007). Indeed, the need for ‘choice’ has featured heavily in the policy construction of the modern work/family problem, perhaps suggesting an understanding of and willingness to address the daily ‘balancing and weaving’ (Hattery 2001, see chapter 1) conducted by today’s parents. In addition, when introducing the 2002 reforms the government claimed that the legislation highlighted its commitment to the family as a whole, noting specifically that its support for increasing men’s participation in family life was ‘as important as increasing women’s ability to participate in the labour market’ (DTI 2003:14). This rhetoric is at first sight revolutionary, suggesting governmental appreciation of the interdependence of public and private spheres in the promotion of substantive equality (on this interdependence generally see chapter 1 and Thornton 1995; Boyd 1997). When placed in the context of the actual reforms it provides, the rhetoric is, however, somewhat undermined. Its reforms have, for the most part, focused on mothers and have failed to provide fathers with an opportunity to participate in the care of a new baby on any more than a superficial level. Overall, the government is thus contradicting its rhetorical commitment to supporting ‘families’ and has, as a result, failed to facilitate genuine choices for both parents and hence failed to tackle gender inequalities in a meaningful way (see Caracciolo Di Torella 2007 and Lewis and Campbell 2007; Kilkey 2006).
Interestingly, recent legislation has also been more noticeably grounded in a desire to ensure that children get the best start in life (see the quote above and the Work and Families Explanatory Notes 2006:2 discussed in James 2006:272). By packaging its reforms as promoting child welfare it clearly locates the family unit as a key provider for informal care, domestic labour and the socialisation of children. However, this latest spin is a double-edged sword. On the one hand this is, again, suggestive of a revolutionary shift as the government is, in a piece of employment legislation, acknowledging the relationship between an important aspect of the private sphere of the home and the public sphere of work and implying that the workplace needs to adapt so as to support the welfare of the next generation. On the other hand however, because it locates childcare and welfare as a private matter and then fails to offer gender-neutral or gender-equal provisions in the legislation, it implicitly links child welfare issues with mothers and the need to support her time away from the labour market to facilitate this important care-giving exercise. Hence, the dominant ideology of motherhood is left intact by provisions which support rather than challenge the socially constructed link between children’s wellbeing and women, an act that also perpetuates the intensification and paranoia of modern parenting (see chapter 1 and Ferudi 2002 and Hays 1996).
Today’s family-friendly legislation, which has evolved in an ad hoc manner, is therefore packaged in somewhat confused and misleading rhetoric which suggests some revolutionary steps forward in terms of promoting work/ family relationships so as to include men, recognise the value of family provided childcare and increase choice but in fact, because of what it offers, perpetuates social constructions and reinforces dichotomies which are deeply gendered. Indeed, as the following overview demonstrates, the current provisions available to working parents represent some progress, but lack the vision and commitment necessary to produce an overall framework that can effectively regulate the diversity of modern pregnancy and parenting/work-place relationships in ways that promotes genuine choices and substantive gender equality.
Maternity leave and pay
Since the enactment of the WFA 2006 (in force since April 2007) all female employees, regardless of length of service, are entitled to 12 months’ maternity leave and have the right to return to the same or similar job at the end of their leave. They may return to work ‘early’, before the end of the year, as long as they provide sufficient notice which is now, since the enactment of the WFA, set at eight weeks. Statutory maternity pay (SMP) is payable for the first nine months and is earnings related for the first six weeks, at 90 per cent of her average weekly earnings. The government has indicated plans to extend the payment of SMP to one year so as to match the leave entitlement but, at the time of writing, no further moves had been made with regard to this (WFA Explanatory Notes: 3). During leave she may work up to 10 days without forfeiting her entitlement to SMP. These ‘keeping in touch’ (KIT) days, introduced under the Maternity and Parental Leave etc. and the Paternity and Adoptive Leave (Amendment) Regulations 2006 (SI 2006/2014), are not compulsory and are payable at SMP rate, unless the employee and her employer agree a higher rate of pay, perhaps her contractual rate, for this work.
At first sight, this current leave entitlement appears to be generous, especially when compared to provisions available elsewhere, such as Australia and the USA for example. Maternity leave is an essential entitlement that recognises the physical limitations placed upon women following birth and when, if relevant, breastfeeding. The most illuminating critique of these maternity provisions is made from a standpoint which considers the family-friendly package as a whole and compares the entitlement of mothers to fathers and juxtaposes leave entitlement which is sex-based and leave entitlement which is gender-neutral. Such an exercise ultimately highlights the necessity for broader action in order to achieve substantive equality for all (see further below). However, even when looked at in isolation, the current maternity leave and pay provisions reveal how childbearing and caring is undervalued and how many of the benefits provided are at best uninformed and at worst reflective of the biases that dominate and shape this aspect of employment law.
Firstly, given that SMP is only available for nine months, and earnings-related for only the first six weeks, the generous leave entitlement of 12 months is only likely to be of use to those with little outgoings and/or a partner who is able to financially maintain the family expenses whilst the mother is on low paid or unpaid leave. Given that dual-earner households are now the norm and that women’s pay is increasingly of equal importance to the family economy (Gregg et al. 1999), this is unlikely to benefit a huge number of families. It is especially unhelpful to single parents, those on low, joint incomes and those with more than one child. Indeed, financial needs are often cited as the main reason for returning to work before the end of leave entitlement (Callender et al. 1997). A more helpful provision might increase the length of time a women is eligible for earnings-related pay, rather than the amount of leave entitlement per se or time she can claim SMP. This would ensure that all women could genuinely take advantage of leave entitlement where desired without incurring financial hardship (James 2006). Thus, the present structure restricts the practical choices open to families in relation to the timing of return, especially those with low incomes. Given that the rhetoric of the WFA links leave entitlement to children’s welfare and enabling parents to make ‘genuine’ choices (see Lord Sainsbury 2006 – above), this implies, albeit unintentionally one hopes, that the welfare of children and the facilitation of genuine choice is only of relevance in the more affluent families of the UK.
Secondly, to initiate and continue a policy that provides little, for the first nine months, or no, for the last three months, monetary compensation when a woman leaves the workplace temporarily to give birth and provide care during the first year of life, strongly suggests that this activity is undervalued. Interestingly though, by providing SMP for some of the leave and by planning to provide it for all of the leave entitlement, the government is, symbolically at least, constructing childcare, or at least an aspect of it, as being inside the realms of public policy consideration. This suggests a reconstruction of the public/private dichotomy in relation to this issue. If the government had provided no financial remuneration for women on leave then it would have reinforced the notion that childcare is a domestic and hence private matter beyond the realms of public interest or investment. This move towards some financial recognition for the mother’s care-giving during this time suggests that this time spent away from the labour market is recognised as time spent providing an important social and economic function. Having said this, the amount of money it considers justifiable for this caring role is pitiful, less than the minimum wage, and supports the view that once a task is constructed as a female one, and childcare has always been classified in this way, it is severely undervalued and lacks status (see chapter 1 and Imray and Middleton 1983 and Olsen 1997).
Finally, the introduction of KIT days in its present form also betrays any claim, evident in the policy rhetoric, of supporting gender equality issues. Paying mothers an SMP rate to care for the next generation is demoralising for a cohort of temporarily unavailable workers, but promoting a policy that women are paid at an SMP rate if they take advantage of the KIT days during the leave period adds insult to injury. Again this reaffirms the view that ‘value accrues to activities by virtue of who performs them and more importantly who controls their social meaning and importance’ (Imray and Middleton 1983:25). This policy provides a disappointing insight into the meaning and importance given to work performed by women, either inside or outside of the home, once she becomes a mother; a meaning and importance that has been shaped by a society that values the unencumbered worker above those it perceives as ‘encumbered’.
Paternity leave and pay
All eligible fathers are currently entitled to paternity leave of two weeks, to be taken within 56 days of the birth. Eligibility consists of being the child’s biological father or partner of the mother (male or female), and having been employed for 26 weeks continuously up to the 15th week before the expected week of childbirth (EWC). It is paid at SMP rate. The government has, under ss 3 and 4 of the WFA, which inserts a new s 80 into the ERA 1996, provided powers for the Secretary of State to further regulate regarding paternity rights and pay and completed a public consultation exercise indicating a commitment to extending leave entitlement before the end of Parliament. It has also suggested introducing, again before the end of Parliament, a right for some of the maternity leave entitlement and pay to be transferred to eligible fathers (see DTI Additional Paternity Leave and Pay Administrative Consultation, May 2007). Paternity leave is the only father-focused element of the family-friendly package of rights. The result of EU legislation (the Paternity and Adoptive Leave Regulations 2002, SI 2002/2788), its introduction marked a major shift in terms of recognising a father’s role in parenting. This recognition is however one of the most disappointing elements of the framework, under-representing the importance of fathers to family life and undermining the official rhetoric and overall potential of the policy to tackle gender inequalities.
Firstly, the short duration of the leave entitlement available and the fact that it is not paid at an earnings-related level is disappointing, not least because it severely underestimates the connection between providing ‘genuine’ choices, an aim of the legislation, and enabling fathers to take a reasonable amount of leave following the birth of a child. The narrative of the paternity leave provisions provides that the right bestows on fathers the opportunity to care for the child and ‘support the mother’, a clumsy provision which unreassuringly grounds the legislation in an implicitly gendered narrative constructing the burden of childcare as a principally female task, and hence reinforcing the dominant ideologies of motherhood and fatherhood. That paternity is so poorly paid and unrelated to earnings makes it of little practical use, and this has certainly impacted upon its take-up (see Caracciolo Di Torella 2007). It is not that fathers do not take any leave, but they are more likely to take paid annual leave than the official paternity leave entitlement (EOC 2006 and Kersley 2006, cited in Caracciolo Di Torella 2007:321). The lack of earnings-related pay for the ‘transferred’ maternity leave proposal is also likely to deter take-up amongst fathers, especially given that men generally earn more than women and it might prove difficult to manage financially on only the mother’s wage. Payment is of course of symbolic importance too, and failure to offer earnings-related pay implies a hierarchy of importance between the nature of a mother’s and the nature of a father’s care-giving during this time.
Secondly, confining the right to those who satisfy length of service eligibility, especially when mothers’ rights are not confined in this way, also undermines the government’s claim to understand the importance of the involvement of fathers in the home. By constructing paternity but not maternity leave as a right to be earned, available only once commitment to the workplace, albeit tokenistic, is demonstrated, further legitimises a father’s role as breadwinner first and father, or ‘supporter of’ partner, second. Moreover, the eligibility criteria also undermine the government’s espoused commitment to the welfare of children, or more specifically and more worryingly, it suggests that only fathers who have demonstrated a primary commitment to their employment are eligible to spend time bonding with their children during these early days of life.
Thirdly, being of such limited duration, paternity leave denies fathers who have expressed a desire to do more, the opportunity to be fully involved in childcare or actually in ‘supporting the mother’ in anything more than a superficial way. As I have argued elsewhere,
If I am cynical, it provides just enough time for the father to smoke a pack of cigars, wet the baby’s head, be appreciated as a ‘good dad’ by the in-laws and slip back to work once the novelty of the moment has subsided, leaving the mother to cope with the monotony of continual crying and nappy changing for a further few months … If I am more optimistic, it provides the father with a brief insight into the ecstacy of parenthood and an opportunity to adjust to his additional domestic responsibilities, only to be catapulted back into full-time work once he has begun to appreciate the demands and joys that a new life can bring.
Given the cultural shift evident in research which indicates how fathers want increasingly to be involved in bringing up their children (see chapter 1), offering only two weeks’ leave is a missed opportunity to cultivate and promote changes already occurring within families, in terms of how parents want to divide their responsibilities. Current proposals to allow the transference of maternity leave to eligible fathers might help to cultivate such changes, but the fact that it is linked to the mother’s entitlement, and hence mother’s agreement, may prove to be detrimental (see Caracciolo Di Torella 2007).
Overall then, when viewed in the context of maternity entitlement, especially with the lengthening of maternity leave to 12 months, nine months of which is paid at present (and it is anticipated that by the end of the current Parliament, proposals will be in place to ensure that it will all be paid), anything less than a corresponding, or shared, right for fathers reinforces the assumption that childcare is a female task and that motherhood is natural and biologically determined. It also reaffirms a father’s destiny as provider and breadwinner for the family and ensures that if the mother does return to the labour force, it is she who is, if only by virtue of their ‘lived experience’ (as opposed to preferences) to that point, henceforth burdened with the ‘second shift’ and the work/life conflict that can result from it (see Crompton and Lyonette 2008; see also Brannen and Moss 1991 and Brannen et al. 1994). Whilst offering a tokenistic gesture to the potential of fathers’ caring abilities and desires, these provisions are unlikely to provide an alternative framework for more equal parenting in twenty-first century Britain. The very act of constructing mothers’ and fathers’ leave and pay entitlement in this way, and so clearly favouring one above the other, perpetuates a division that might so easily have been bridged if the next facet of the family-friendly package, parental leave, had been more sympathetically developed.
All eligible parents are entitled to a period of unpaid leave to care for their child. It applies to mothers and fathers or the person with formal parental responsibility for the child, so long as they have a year’s qualifying service with the employer. Parents can take a maximum of 13 weeks’ leave per child in minimum blocks of one week and maximum blocks of four weeks until the child is five years old. In addition, employers can postpone the right to take leave for up to six months, if to grant it would unduly disrupt the functioning of their business. It is unpaid and there are, at present, no plans to extend this entitlement or provide pay to those who wish to make use of it. It is, for this reason, of very limited use to parents and not widely used in the UK. Where it is used it seems to be taken up more by women, who add it on to their maternity leave entitlement so as to extend the latter, where feasible financially to do so. The lack of development of this leave entitlement in the UK is symptomatic of its rocky introduction following fierce opposition to the EU law which initiated it (Council Directive on Parental Leave 96/34 EC OJ 1196 L 145/4–9) (see Caracciolo Di Torella 2000) and it is disappointing that the UK leave entitlement is ‘the least flexible, the shortest permitted under EU legislation and it remains unpaid’ (Caracciolo Di Torella 2007:323).
This current approach to parental leave is unfortunate on many levels. A positive approach to parental leave, backed up with payment and flexibility, could help create a shift in constructions of parenting. Being gender neutral, parental leave implies no bias in terms of who should be primarily responsible for childcare and could, if developed in a purposive way, provide a realistic alternative to the mother/father dichotomy perpetuated by the ever-increasing gap between maternity and paternity leave provisions. Interestingly, in Sweden, where parental leave has been embraced and developed since the 1970s, it has had a positive impact on encouraging fathers to take advantage of the opportunity to participate in caring for children. However, the success of parental leave schemes are, it seems, dependent on many other factors too, including whether or not it is paid, how flexible it is as a right, whether it is supported by the state and the immediate family and employers (see Caracciolo Di Torella 2000; Devan 2005; Devan and Moss 2002; Leira 2000; Nyberg 2004, cited in Lewis and Campbell 2007:13). In terms of its lack of flexibility there is ample room for improvement to the UK provisions, as the case of Rodway v South West Trains  IRLR 583, CA demonstrates. Here, an employee who took one day’s parental leave to care for his son was charged with unauthorised absence from work. The Court of Appeal held that this was contrary to the legislation and stipulated the need to take the leave in blocks of one week at a time. As Caracciolo Di Torella states, more flexibility is required in order to better meet the needs of parents and the potentially differing needs of fathers and mothers, in this context (Caracciolo Di Torella 2007:323). The ruling of the ECJ in Sara Kiiski v Tampereen Case C–116/06  1 CMLR 5 appears to offer a better approach. In this case it ruled that an employer’s refusal to alter the duration of its parental leave provisions when the recipient discovered she was pregnant with her second child, and hence needed to renegotiate her previously agreed leave arrangements so as to enable her to take advantage of maternity leave rights, contradicted the Equal Treatment Directive (ETD). The ruling arguably helps parents by enabling them to renegotiate work/care arrangements in these circumstances. It is disappointing, however, that the decision was based upon the fact that the ‘discriminatory treatment resulting from provisions at issue were capable of affecting women only’ (para 14), rather than an appreciation of the longer-term impact of the second pregnancy on the family as a whole and their need to rearrange care-giving responsibilities and labour market participation of both parents as a result.
The cases above fail to locate the pregnancies and childbirth in their wider contexts yet, as Devan points out, parental leave cannot be considered in isolation (Devan 2005:258) and needs to be approached in a more holistic manner. In Sweden, fathers’ participation in childcare is viewed, and presented in proactive educational campaigns, as a social right, important for children and gender equality (see also Moss and Devan 1999). In the UK the ‘government has serious reservations about parental leave as a measure, perhaps because of consistent opposition from employers who see parental leave as a further regulation of the labour market reducing flexibility of employment’ (Devan and Moss 2002:242). Given its potential benefits however, why a government claiming to want to change the culture of society so as to help create one in which parents can choose how to balance work and family needs, does not seize the opportunity to widen the scope of, and cultivate a more positive approach towards, parental leave, is an anomaly. Even if its take-up is slow and more likely to be accessed by mothers than fathers, as has been the case in Sweden, it has an important symbolic as well as a pragmatic appeal. As Devan put it, ‘it erodes an employment system in which workers, especially male workers, are assumed to have no caring obligations. Parental leave legislation formally links the concepts of “worker” and “carer”’ (Devan 2005:263).
The parental leave provisions reveal a further anomaly of the family-friendly package of rights; that it tends to focus on those with young children. Maternity and paternity leave provisions are available during the first year of life, and parental leave is available only to those with children under five (or 18 if disabled; or during the first five years of adoption). Yet if the government wants to help parents achieve a work/life balance, it ought to consider the needs of all parents, not simply those with younger children. To confine it in this way suggests that child welfare issues and ‘genuine choice’ for parents, both important according to official family-friendly policy rhetoric, is relevant only to parents with children under five. The current approach essentially defines a large cohort of parents as unworthy of special and different treatment in this context, marginalising their potential needs as both parents and workers (see further below).