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A Right to Care?Unpaid Work in European Employment Law$

Nicole Busby

Print publication date: 2011

Print ISBN-13: 9780199579020

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780199579020.001.0001

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Paid Work and Unpaid Care: The Unsolved Conflict

Paid Work and Unpaid Care: The Unsolved Conflict

Chapter:
(p.40) 3 Paid Work and Unpaid Care: The Unsolved Conflict
Source:
A Right to Care?
Author(s):

Nicole Busby (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199579020.003.0003

Abstract and Keywords

This chapter explores the unsolved conflict between paid work and unpaid care. The meaning of the term ‘care relationship’ is considered and existing literature is used to explore the diversity of such relationships revealing the complex, finely-tuned and often delicate nature of associated work/care arrangements. It is asserted that society has a moral duty to recognise and reduce the heavy social burden imposed on those engaged in such relationships through shared responsibility. A consideration of women's labour market position relative to that of men reveals the relationship between gendered segregation and the division of labour within families and established labour market classifications. It is argued that the transformation currently taking place in working arrangements provides new opportunities to review the existing regulatory approach to the reconciliation of paid work and unpaid care.

Keywords:   care relationship, moral duty, division of labour, paid work, unpaid care, labour market

Introduction

The aim of this Chapter is to explore what has been termed the ‘unsolved conflict’ between paid work and unpaid care.1 Given women's contributions to both paid and unpaid labour, the contextualization of this conflict involves consideration of the gendered organization of paid work within labour markets as well as of the unregulated division of labour within families. If the working lives of most women (and some men) can be characterized as comprising a paid work/unpaid care equation, it is apparent that much of the existing literature in this area, at least from the labour law perspective, consists of useful insights into the ‘paid work’ side of the equation but all too often neglects to define and consider the nature of the ‘unpaid care’ component. This is unsurprising as the current demarcation between social policy and law2 dictates that the influence of labour law as a catalyst for change in this respect is confined to the regulation of the working relationship between employer and employee and is possible only through manipulation of the agreement between the parties regarding the market aspects of that relationship: that is the bargain struck over the provision of labour and resulting measurable output, and the rate of pay and associated aspects of remuneration given in return.

As Chapter 2 argued, this restricted approach has reached its limits as a means of producing effective reform and what is now required is the development of more holistic interventions that are capable of connecting disparate policy strands to take account of the full range of human activities. Such an approach calls into question the compartmentalized regulation of different aspects of a person's life as determined by the current divisions of law and policy and causes us to rethink existing conceptions of responsibility and the respective contributions of the individual, the family, employers, and the wider society. This necessitates consideration of the role (p.41) of the State in regulation of the private as well as the public domains and over aspects of the uncommodifiable as well as the commodifiable contributions of individuals.

The chapter will start by considering what is meant by the term ‘care relationship’ in the current context. Drawing on existing empirical and theoretical literature, the diversity of relationships between carers and those cared for will be explored in relation to the levels of relevant dependency and corresponding support required and the consequently complex, finely-tuned, and often delicate nature of care arrangements into which those who combine care-giving with paid employment are compelled to enter. The aim is to highlight the need to recognize care as an essential and everyday human activity, which incorporates both mundane and life-enhancing aspects, that carries a heavy social burden which could be lessened through shared responsibility for meeting the needs of those cared for and those who do the labour of caring. The carer's burden is not always transferable due to the inalienable nature of certain aspects of care which comprise a non-negotiable component of an individual's working life. This necessitates looking beyond the contracting out of care when seeking to discharge the social obligations it imposes. Although it is often overlooked in considerations of labour market policy, the subject of unpaid care and its intersection with paid work has gained some prominence in academic analyses across disciplines in recent years and has been a particular focus of attention within the US literature.3 In setting out the moral basis for a right to care, extensive use will be made of such analyses. The second part of the chapter comprises an overview of women's labour market position relative to that of men. The high levels of gendered segregation that occur across Europe are a product of the division of labour within families as well as being reflective of the gender stereotyping that results from the female-carer/male-breadwinner classifications. However, women's participation in paid employment is increasing and this factor, alongside other aspects of the transformation that is currently taking place in working arrangements, offers new opportunities to review the existing regulatory approach to the reconciliation of paid work and unpaid care.

The Care Relationship

In Justice, Gender and the Family 4 Okin considered the unjust gendered division of labour that takes place within the family and the ‘mythical assumption that every worker has “someone else” at home to raise “his” children’.5 In advocating more (p.42) equitable care arrangements, Okin placed special obligations on employers to make positive provision for the fact that most workers are also parents and may be required to care for children and other family members at some point in their working lives. This, she envisaged, would require greater flexibility in setting terms and conditions of employment which might be subject to adjustment over time in line with changes to the care demands placed on the individual worker-carer. Central to this vision of a more egalitarian division of responsibility for care is the notion that ‘public policies and laws should generally assume no social differentiation of the sexes’.6

Okin's aspiration for a gender-blind society is conceptually sound and laudable in its aim, particularly when the effects of combining unpaid care and paid work on the life chances of those (women) who do both are considered. What is surprising is that her call for change was made 20 years ago and, although now apparently accepted by many mainstream commentators and policy-makers, is still far from realized. Part of the reason for such little progress, despite consensus regarding the need for change, lies in labour law's continued failure to acknowledge, except in very specific circumstances,7 the effect of care-giving on an individual's ability to conform to the standard often demanded by pre-existing structures. This is not the same as (and cannot be remedied by) the recognition and established prohibition of sex discrimination which, in order to be more effective, should focus on outcomes rather than processes by seeking to overcome the restrictions placed on most women due to the gendering of care. Alongside strengthened sex discrimination legislation, gender-free outcomes require targeted policy which does not distinguish between men and women so that legal intervention aimed at the reconciliation of personal and professional life should be available to either sex. Only through such provisions will it be possible to give full recognition and improved status to unpaid care itself which, in turn, will facilitate a move away from its feminization towards a more equal distribution of unpaid labour between the sexes.

From a market perspective, the uneasy relationship between gender, care, and paid work might arguably be solved by the outsourcing of care, particularly as individuals become increasingly engaged in meeting the demands of globalized capitalism and commit to full-time employment's promise of individual autonomy. However, in reality the depersonalization of care is rarely desirable for either party to the type of informal arrangements with which this book is concerned. Carers, although undoubtedly time poor and in need of support and assistance, are often unwilling to hand over the care of a child, sick partner, or elder to a third party however good the quality of care might be because, setting the obvious cost implications aside, to do so would deny them and their loved one the reciprocal rewards of a caring relationship. For the recipient of care, the affective aspects of the relationship are unlikely to be provided in an institutional setting without the (p.43) intimate connections on which ties of family and friendship are based. The inalienable nature of care is often neglected in the market-based conceptions of ‘work’ which underpin labour market policy.8

However, to dichotomize care as either commodifiable and, thus, marketable or as inalienable and therefore only appropriately provided within the context of an intimate relationship is to oversimplify its nature. By masking care's true complexities and those of the multitude of relationships within which it occurs, such polarization risks perpetuating stereotypes of carers as either cold, third party providers or as equally faceless beings who give selflessly for the well-being of others. In reality, the provision of care consists of a combination of activities and emotional properties9 incorporating both the mundane and the profound.

Defining Care

In her study of the moral context and content of care, Tronto sought to reconceptualize care in order to ‘move it from its current peripheral location to a place near the centre of human life’.10 In attempting to capture the full range of properties intrinsic to the term, she suggested that ‘caring’ be defined as

[a] species activity that includes everything that we do to maintain, continue, and repair our ‘world’ so that we can live in it as well as possible. That includes our bodies, ourselves, and our environment, all of which we seek to interweave in a complex, life-sustaining web.11

Tronto's definition is intentionally broad-based and seeks to avoid the assumption that caring is dyadic or individualistic. By placing the care relationship within a more general framework than that consisting of the interaction between two individuals, Tronto lifts it out of the romanticized paradigm of the mother and child relationship and emphasizes its social and collective dimensions. This is helpful in the current context which requires recognition of the fact that care for one person can, in certain circumstances, be provided by more than one carer, regardless of gender, and also that the diverse arrangements surrounding its provision may be culturally significant. Furthermore, it is important to capture the ongoing nature of care which forms part of everyday life, so that it is ‘both a practice and a disposition’.12 While the often mundane and perpetual nature of care-giving is undeniably important in any attempt to encapsulate its essence, its temporality must also be acknowledged as, in most circumstances, degrees of dependency lessen (p.44) or diminish as children grow up and dependants who are ill recover, develop individual coping strategies enabling a more independent existence, or die.13

Acknowledgment of the varying degrees of dependency and corresponding levels of care, which may vary over the life-cycle, enables consolidation of the wide variety of needs encapsulated by the term ‘to care’ and indicates that any related right must be broadly based in terms of scope so as to avoid an overly prescriptive approach based on a narrow perception of the parties to the relationship as well as being conceptually flexible to enable incorporation of a wide diversity of arrangements. Furthermore, a process of review and amendment must be incorporated as both carers' and care recipients' needs change over time. All of these aspects will be given consideration in the discussion of the most suitable regulatory approach in Chapters 5 and 7.

The realization that care amounts to no more or less than an aspect of everyday life challenges the belief that those who engage in it are somehow predestined on the basis of their individual characteristics to do so and the related assumption that an ability to care is predetermined by the possession of certain personality traits or an individual propensity. This is central to the development of a socially recognized ethic of care in place of the essentially-based notion that ‘women's morality’ makes them better suited to selfless giving than men.14 Rather than continuing to justify the exclusion of those engaged in unpaid care from full participation in political and economic life as a natural consequence of perceived suitability, society needs to redraw its moral boundaries so as to give care its rightful place at the centre of all human activity. Only by doing so is it possible to realize the potential for the sharing of care within families and other relevant associations and across gendered and other divisions. If care remains bound to the erroneous belief that women are biologically predetermined to perform it, its categorization as instinctive or as irrevocably embedded in social or cultural practices places it outside of the realms of moral choice and renders its social arrangement incapable of change. Furthermore, the stereotypical portrayal of carers as a selfless beings, motivated only by altruistic concern denies recognition of their, all too often unmet, needs. The development of a socially recognized ethic of care does not necessitate new paradigms of care but, on the contrary, requires us to look to established models of good practice which can provide blueprints for greater participation in and responsibility for care around which other aspects of human activity can be ordered.

Like all essential human activities, care is multifaceted and consists of a range of inter-related properties which require both emotional and physical investment so that, ‘It is a labor, an attitude, and a virtue.’15 Even where care is provided under (p.45) intimate conditions, the task of maintaining its provision in difficult and personally disadvantageous circumstances requires cultivation of the virtue16 by which the care-giver must make a transition from self-interest to a focus on the situation of the one in need of care. This reliance on goodwill can leave the care-giver vulnerable to exploitation and the current informal arrangements within which care takes place can see her confined to the private sphere of the family and denied a personal identity and public voice with which to articulate her specific needs.

As noted above, a common response to the unpaid care/paid work conflict lies in the justification that it results from the exercise of choice, so that the misfortunes experienced by those who engage in paid employment and unpaid care are the result of a process of rational decision-making. Under this line of reasoning, individuals, when faced with conflict, should make alternative choices that would ease their burden and enable them to focus their time and energy on whichever aspect of their life they favour. Such reasoning underpins human capital theory17 and the related belief espoused by followers of neo-classical economic theory18 that the market provides the best means of resource distribution with lower wage rates and associated remuneration rationalized by selective decision-making. However, the assumption of a ‘free’ labour market underpinning such beliefs is highly questionable as is the accompanying assumption that carers are autonomous individuals who are in a position to exercise free choice regarding their life courses. According to Fineman, our preferences are structured by and through existing societal institutions so that choices are made in the context of ‘social relations that reflect long-standing cultural and social arrangements and dominant ideologies about gender and gender roles’.19 Furthermore, our beliefs regarding the appropriateness of such arrangements often operate at the sub-conscious level placing them beyond scrutiny so that we, apparently instinctively, know ‘what constitutes the good mother, the ideal husband, and the perfect marriage’.20

In addition to the complexities of social conditioning, the carer often has other more tangible constraints on her freedom to make choices. In her analysis of modern parenting, Alstott posits that society's expectation that parents will provide continuity of care for their children imposes a double burden in that, as well as the long-term commitment to their children, parents are also expected to ‘reshuffle their priorities: parents must strive to meet their children's material and emotional need, and they must, if need be, limit their own aspirations and forgo opportunities to do so.’21 This reprioritization applies, to varying degrees, to all carers regardless of whom they care for and is the source of one-off dilemmas as well as of ongoing conflict and compromise. Perhaps the most obvious manifestation of the ‘no exit’ effect referred to by Alstott can be illustrated by way of the sick child who cannot be (p.46) left with her normal childcare provider to enable her primary carer (mother) to go to her paid employment despite the fact that if the carer/mother takes unauthorized leave, she risks her job security. Despite years of equality and anti-discrimination legislation, labour law has no effective response to the ‘dilemma’ posed for the mother in this situation.

Although the ‘choice’ rationalization might be applied when such dilemmas involve children on the grounds that parenthood is the end result of a decision-making process,22 what of other care relationships? To what extent can the loss of a carer's personal autonomy be rationalized on the basis of preference or choice in the provision of elder care or in cases involving profound disability or terminal illness? In such circumstances the ‘choices’ available to the carer between the personal performance or outsourcing of care often involve financial constraints that serve to further limit the narrow range of available options. The classification of care-giving as a matter of individual choice enables circumvention of society's collective responsibility to provide for those who are vulnerable through their status as either dependant or carer. Furthermore, treating care-giving as a commodity risks neglecting its affective dimension which renders certain aspects of it inalienable and, thus, outside of the scope of market exchange.

The Affective Dimension

The affective dimension of the care relationship arises due to the universal human need and capacity for intimacy and attachment which is satisfied most fully through a network of caring relationships. It is these relationships that bind us together and that give us our sense of identity and belonging. The care and love that we receive over our lifetimes enable us to form stable, loving relationships of our own and to lead successful and fulfilling lives.23 Although theoretically the needs of one individual might be satisfied by the exclusive provision of care by another, in most instances, particularly where the level of dependency is great, it will be necessary for the carer to look outside of that relationship in order to ensure that her own needs are adequately met. This can require the input of a wide range of individuals and collectives which together comprise an interdependent coalition or network of care which is based on solidarity between individuals in recognition of the fact that care cannot and should not be a solitary and isolated practice. However, as outlined above, there are also aspects of care, particularly in the context of its personal provision, which cannot effectively be provided or performed (p.47) by anyone other than the primary carer. The imposition of this burden of care on one individual emphasizes the importance of solidarity through which the involvement of others24 can alleviate responsibilities in other respects as well as providing practical and empathetic support.

The grounding of care in personal relationships of love and obligation renders certain, although not all, aspects of it inalienable and, thus, unsuitable for market exchange. Indeed, improvements to the process of and conditions for commodification of certain care tasks would assist in the avoidance of exploitation.25 However the emotional work incurred in loving another cannot be transferred to a third party in exchange for payment and to attempt to do so would ‘undermine the premise of care and mutuality that is at the heart of intimacy and friendship’.26 In market terms, the inalienability of love's labour renders it formless, unquantifiable, and impossible to ascribe a specific value to. It cannot be condensed into particular periods of time.27 Furthermore, its nurturing and affective qualities do not lend themselves to the type of hierarchical structure designed, ostensibly at least, to reward effort and to record progression in market terms.

In their empirical study of relationships of love, care, and solidarity, Lynch et al28 have argued that Western society's ‘deep ambivalence about caring and loving’29 has found expression in the academy's cross-disciplinary interpretations of the liberal and radical egalitarian traditions. In sociological, economic, legal, and political thought, this is manifested in a number of recurring features such as the focus on the public sphere, the core assumption that the ‘prototypical, human being is a self-sufficient rational economic man’ and the neglect of ‘the reality of dependency for all human beings, both in childhood and at times of illness and infirmity’30 leading to the unequal satisfaction of individual needs. As well as preventing us from developing and fostering vital connections with one another, such ‘affective inequality’ can deprive the providers of unpaid care of important human goods such as an adequate livelihood. To counter such inequality, it is necessary to challenge contemporary social arrangements such as the division of labour within families and also to change the institutions that hinder the development of such vital bonds including the arrangements surrounding the organization of paid work. This requires recognition of the needs, not just of those who depend on unpaid care, but of those who provide it so that, in the current context, the demands placed on (p.48) an individual through the provision of unpaid care should be accounted for through amendment to the paid work component of her life. This, in turn, requires reassessment and realignment of the responsibilities and obligations incurred in both the private and public spheres. The issue of responsibility and legal obligation will be more fully explored in Chapter 4 but, in order to rationalize the necessary shift in social arrangements, attention will be given to the need to provide care for the carer.

Caring for the Carer

In her work on the morality of care, Kittay31 argues that our motivation for providing care arises from our own intrinsic need for a co-dependent relationship. This cycle of care, in which an individual may be at once giver and recipient, is the source of deep and satisfying bonds which ‘count among those we most cherish’.32 At its most basic level, care is crucial for perpetuation of the species through the nurturing of infants and beyond and the provision of support to those who are or become dependent in the years between birth and death is the most fundamental expression of a decent and civilized society. The giving of care is imperative for the individual well-being of both dependents and carers and, in the collective sense, for the achievement and maintenance of a just community.

The conceptualization of the rights and obligations arising from the care relationship thus proceeds from an assertion that dependency is a fundamental component of the human condition. This factor is often overlooked in both feminist theory and in the conception of political liberalism expounded most influentially by Rawls considered in Chapter 2.33 The assumption of autonomy underpinning Rawlsian theory presupposes that all citizens are equally free to negotiate contractual exchanges in order to achieve their particular ends. However, in the context of the care relationship, the element of ‘choice’ is both contested and complex and the reciprocity which emerges as a precondition for equality in Rawls's thesis must be reconfigured in the context of the interactions between dependants, their carers, and the wider society, which means ‘acknowledging the importance of reciprocating the efforts of those who do the labor of caring’.34 Due to the very nature of dependency, the return on effort expended in providing care cannot always be forthcoming from those who are dependent so other sources must be identified. This form of reciprocity is best performed through a public ethic of care which Kittay has termed ‘doulia’.35 Although specific to the mother and child relationship, the concept of (p.49) doulia or the carer's need for care is applicable to the whole range of care relationships across the spectrum of needs. It is what is missing from the unpaid care/paid work conflict as the formal recognition of the need to care for the carer elevates the status of care-giving to its rightful place as an activity that is worthy of attracting a specific social value by commanding protection for those who engage in it. The moral imperative informing the notion of a public ethic of care is sufficiently compelling so as to justify public intervention in the form of a legal right to care and, in turn, to be cared for. Furthermore, because responsibility for the provision of such support rests with the wider society, it is logical to assume that all areas of law and policy that are in some way related to the social and economic life of the individual should be appropriated in order to give it expression. This would certainly apply to labour law, which regulates a key aspect of our lives which is intrinsically important to our psychological and physical well-being and which provides the means by which we are able to achieve full or partial economic independence.

Labour law's intervention in the unpaid care/paid work conflict has traditionally been concerned with identifying and applying specific policies which satisfy employers' requirements,36 and it is thus generally neglectful and, in some instances, implicitly hostile to the notion of incorporating the specific needs of carers. The language of such policy is informative as to its origins and aspirations: the term ‘family friendly’ suggests, by implication, that alternative policies are legitimately assumed to be ‘unfriendly’ to families. Likewise, the phrase ‘work/life balance’ confers an easy separation between those activities that can be classified as ‘work’ (paid work) and all other aspects of ‘life’ (including the unpaid work of care-giving), which is meaningless to those who participate in both types of activity often with little to distinguish them in terms of time or effort. Although such terms appear, on face value, as innocuous, perhaps even comforting, they actually serve to perpetuate the dichotomization of paid work and unpaid care. Correspondingly, those who combine unpaid care with paid work through, for example, part-time arrangements are classified as ‘atypical’ as their working patterns differ from the ‘norm’ of full-time, permanent employment. The fact that such arrangements are overwhelmingly sought by women only serves to confirm that man is ‘the subject’ and woman is ‘the other’.37 The working mother of pre-school or school-age children, although a growing demographic, personifies this combination of the public and private in a way which appears to have confounded policy-makers.

In attempting to reorient our conception of the relationship between paid and unpaid work so that labour law might better accommodate the care aspect, it is necessary to move from an employment-centric vantage point to a care-centred approach. This throws up a whole set of interesting questions regarding responsibility and the discharge of obligations requiring consideration of economic, social, moral, and ethical dimensions. This shift in focus, if placed within the context of the labour law framework, requires a corresponding change of emphasis so that rather (p.50) than conducting an exploration of the employment rights of carers, the primary investigation becomes a consideration of the caring rights of employees.

The rationalization of the moral argument presented here for shared social responsibility for care, whether realized through gender-neutral policy or compensatory provisions, lies in the fact that the nurturing and support that occur through the provision of unpaid care makes market participation possible by enabling the so called autonomy of market players. This takes place at the beginning of life and throughout childhood often by way of the mother/child relationship and also occurs through the transfer of responsibility from one individual to another in order that the former might be ‘free’ to participate in the market. In this configuration, we are all, to varying degrees, ‘dependent’. However, the overwhelming burden and high personal cost of unpaid care falls to certain individuals whose labour market prospects are significantly reduced as a consequence. In the next section, such disadvantage will be considered and explanations advanced for its enduring nature in light of targeted legal and policy reforms intended to counter some of its contributory factors.

Unpaid Care in the European Labour Market

The post-war growth in women's employment is often heralded as being unprecedented, but it is important to interpret the relevant statistics cautiously in this context. Hakim38 has shown that although the trend in women's participation rates over the post-war period is undoubtedly an upward one, a longitudinal analysis of women's engagement in paid employment reveals that, since the mid-nineteenth century, female employment rates have remained remarkably stable. It is the nature of work and the working arrangements that have changed, notably with the growth of paid part-time work that has taken place since the 1970s. An historical perspective reveals that the relatively high rates of female labour market participation are not necessarily a twentieth century phenomenon. The distinction between paid work outside of the home and unpaid work within it originates from the time of the industrial revolution and the concentration of labour in factories, prior to which divisions between different forms of work had been largely obscured by the prevalence of subsistence agriculture and the various forms of craft work emanating from cottage industries. In the UK, for example, the recorded participation rates of married women engaged in paid labour declined sharply from 25 per cent in 1851 to 8.7 per cent in 1921.39 With increasing industrialization, paid work outside of the home replaced informal working arrangements and women's childcare responsibilities impacted on their labour market opportunities with a constraining effect in both the ideological and practical senses, so that they were prevented from obtaining paid work by what was believed to be appropriate for them to do and also (p.51) by what they could actually do. Both of these factors continue to have an influence over the labour market experiences of women.

Even if the changes to women's aggregate employment patterns are historically contextualized in order to identify the social and economic factors that have shaped them, it is nevertheless true that a transformation has taken place within the confines of twentieth century Western Europe.40 Women's labour market participation rates have increased in all of the EU15 Member States since the end of the Second World War so that, in 2007, 59 per cent of women were economically active41 compared with an average of below 40 per cent in 1960.42 Closer scrutiny of the statistics reveals that the aggregate figures mask a range of diverse arrangements in relation to the types of paid work in which women are engaged. This diversity relates to hours of work and other terms and conditions of employment. In the EU27 29.4 per cent of women aged between 25 to 49 work part-time compared with 4.7 per cent43 of men and more women than men are employed on fixed-term contracts.44 The reasons why individuals work part-time are far more likely to relate to caring responsibilities for women45 and a lack of alternative employment opportunities for men.46 Furthermore, although women's aggregate participation rate has risen, it still lags 15.5 percentage points behind that of men,47 with the mothers of small children having a significantly lower participation rate than childless women.48 The participation rate of mothers of children aged between 0–5 years is 59.7 per cent compared with 91.2 per cent for fathers.49

The persistence of gendered pay gaps in all Member States means that, on average, women earn 17.8 per cent less per hour than men.50 This is partially due to such factors as women's lower educational attainment and professional (p.52) development with further explanations lying in the highly segregated nature of labour markets which are gendered, so that women work in different employment sectors and in different jobs from men (horizontal segregation) and at different levels within occupational hierarchies (vertical segregation).51 Although women have made some inroads into previously male-dominated areas of work, the most constant and enduring feature of women's employment in the post-war era can be said to be its comparatively low status.

The Nature of ‘Women's Work’

A high level of gendered segregation still persists in the labour markets of all Member States52 despite the fact that women have increased their share of employment and have made important inroads into some previously male-dominated sectors and jobs over the past 40 years.53 The highly segregated nature of labour markets has led to the identification of certain types of paid employment as ‘women's work’. Such work is crowded into a narrow range of occupations and, as well as its predominance within certain sectors, has other characteristics which are common to the types of paid work undertaken by large number of women across Europe.

Research indicates that there is a high concentration of women in the public sector which accounts for 32 per cent of all women employees, compared with 19 per cent of all male employees.54 Women who work in the private sector tend to be employed in small and medium-sized companies rather than large ones.55 Women's employment is concentrated in health care, education, and public administration, while men predominate in construction, manufacturing, transport, agriculture, and financial services.56 Most people work in sectors in which their own sex either forms the majority or the entirety. In the occupational context, women's jobs tend to involve caring, nurturing, and service-related activities with men predominating in jobs involving managerial responsibility and manual and technical work often categorized as ‘heavy’ or ‘complex’. Thus, men fill 80 per cent of the employed armed forces, craft, and related trades and jobs associated with plant and machine operation. Men also hold more than two-thirds of the skilled agricultural and fishery jobs with women predominating in two-thirds of clerical, service, and sales jobs.57 (p.53) In professional and manual occupations, there is a more even split between men and women at the aggregate level with segregation discernable at the sub-category level: men holding the vast majority of jobs within the physical, mathematical, and engineering professions and women predominating in the health and education professions.58 Women are under-represented in self-employment and account for only 33 per cent of self-employed workers in the European labour market.59

Vertical segregation occurs where, in any given sector or industry, one or other sex predominates in senior, managerial, or well-paid positions and the other is correspondingly over-represented in lower paid jobs and within certain types of employment contract. Although women in Europe have increased their representation within managerial jobs in recent years, there are still clear differences in the gender composition of those filling such jobs60—63 per cent of European workers have a man as their immediate superior, with only 21 per cent working under the authority of a woman.61 Women who are managers or supervisors are more likely to be in charge of other women as less than 10 per cent of male workers have a female manager or supervisor. Men occupy more than 60 per cent of the legislative and managerial occupations, rising to over 70 per cent if the sub-categories of corporate managers and senior government officials are considered.

The transformation that has taken place within the European labour market is not restricted to the composition of its workforce as the nature of employment is also changing. Dickens62 has attributed one of the reasons for such change to a growth in ‘atypical’ or ‘flexible’ employment with the other dominant feature being the rise of ‘networked, boundaryless, (sometimes virtual) organisations in which highly skilled autonomous professional individuals, with occupational or portfolio careers rather than organizational careers, link together with others to work on a non-hierarchical project basis’.63 This highly valued and well rewarded work is generally performed by self-employed (male) individuals through contracts for services with increases in low status ‘atypical’ employment more commonly reflected in women's aggregate work patterns. Both of these changes to the working environment have been reflected in recent developments in policy-making at the European level and were reflected in the goal of the Lisbon Agenda64 ‘to become the most competitive and dynamic knowledge-based economy in the world capable of sustainable economic growth with more and better jobs and greater social cohesion’.65

(p.54) This shift in Europe's social policy objectives, which has effected a reorientation of focus away from the programme of harmonization of social standards towards facilitation of the co-existence of national policies,66 is likely to have a marked influence on the shape of future regulation at the supranational level. The rationale for such redesign is based on the notion that greater labour market flexibility requires a move away from State intervention towards deregulation. This, according to the industrial relations literature, is a flawed assumption based on an over-simplification of the relationship between regulation and labour market behaviour.67 If sustained, this notion has obvious implications for the future quality and supply of women's employment, demand for which is closely intertwined with the growth in atypical work due to the gendered nature of unpaid care which is overwhelmingly provided by women. The specific responses of EU law to changes in the nature and composition of paid work will be more closely considered in Chapter 5, in which it is argued that the move away from labour market regulation places an increased emphasis on the European Court's interpretation of the constitutional or fundamental rights conferred on the citizens of the European Union by the Treaties' provisions as a means of settling employment disputes based on contested levels of protection. First it is worth exploring how those with caring responsibilities have collectively engaged with the labour market in the post-war era. The aggregate patterns of female market participation reveal that women's attachment to paid work has changed during this period and continues to move closer towards what has been termed the ‘adult worker model’ traditionally associated with male employment despite the fact that men's participation in unpaid care has remained static and low.68

Modelling Women's Labour Market Participation

Although women's employment rates have risen in all EU15 Member States since the mid-1960s, there has been considerable variation in the increases that have taken place in specific countries which can be usefully analysed with reference to the different relationships between motherhood and paid work that co-exist within the European Union. The three main categorizations which were originally used to describe patterns of female labour market participation69 are no longer as relevant (p.55) as they once were, as the labour market participation rates of women in the 25 to 49 age group have increased in all Western European Member States70 indicating that the impact of motherhood on women's participation in paid work has decreased causing their labour market behaviour to move closer to that of men.

Although a detailed analysis of the reasons behind this shift in behaviour is beyond the scope of the current text, it is important to note that it amounts to more than a mere reflection of changes to family formation and dissolution which have led to an increase in the number of lone mothers and a shift towards motherhood at a later life stage for many women. As Lewis et al71 have noted, explanations for diversity in and changes to patterns of paid and unpaid work among Europe's women are linked to the complex relationship between economic necessity and personal choice which are, in turn, determined by opportunities and constraints so that ‘it may well be that mothers’ decisions/strategies for combining work and care depend on a compromise between the possible and the preferred'.72 The role and effectiveness of policy in this respect is contested and, although it is likely that ‘policy matters’, it is ‘remarkably hard to prove it’.73

At the household level, this change in patterns of paid work and unpaid care can be classified as a move away from the ‘male breadwinner model family’, in which men are primarily responsible for earning and women for providing unpaid care, towards the ‘adult worker model family’ in which all adults regardless of sex or parental status are assumed to engage in paid employment outside of the home.74 As Giullari and Lewis75 have noted, although the male breadwinner model made provision for care-giving within the family by its implicit acceptance of women's provision as part of the ‘package’, this shift in the balance of paid work/unpaid care is accompanied by no such provision. In fact, an analysis of relevant policy responses reveals an assumption on the part of governments and policy experts that care provision will increasingly move to the formal, paid sector.76 As explored above, this assumption is problematic due to the uncommodifiable nature of certain aspects of care.77

(p.56) The obvious tension between caring responsibilities and labour market participation has undoubtedly been the most relevant factor in the rise of women's part-time employment in the post-war era. That such work has, until relatively recently, been detrimentally differentiated from full-time employment by Member States' legal systems reflects the State's reluctance to intervene in the operation of the labour market and the willingness of governments to trade off women's employment rights in favour of increased flexibility for employers. As the continuing rise in women's share of the paid labour market relative to men's shows, the key to improving ‘women's work’ lies not in increasing its quantity, but rather in enhancing its quality.78

Explaining the Poor Quality of ‘Women's Work’

Before turning to the issue of unpaid care and its specific policy requirements, it is worth considering the various responses which are most commonly advanced as explanations for the poor quality of women's work relative to that undertaken by men. The rationalization offered by the neo-classical economic and human capital schools rely heavily on a particular neo-liberal interpretation of the core liberal values of individualism, autonomy, and freedom through which an individual's worth is assessed exclusively on the basis of his or her commodifiable contribution to the market. This overlooks the essential contribution to human well-being that is realized through the labour of unpaid care, much of which can not be commodified and is, thus, unsuitable for measurement or exchange in market terms. This restricted approach does not, therefore, provide a satisfactory explanation for the behaviour of individuals who combine care-giving with paid work as it takes account of only one aspect of their lives. Furthermore, it provides an inadequate framework within which to assess the application of the core values of individualism, autonomy, and freedom to those who require care for their survival due to their non-participation in the process of market exchange. In any case, the inter-relationship between unpaid care and paid work as well as other extraneous factors, means that the categorization of the labour market as a ‘free market’ is conceptually flawed. The sensitivity of the ‘work for pay’ exchange to other factors outside of the relationship between the parties to the employment contract leaves this aspect of the unpaid care/paid work conflict susceptible to legal and policy interventions which, if specifically targeted, could have a normative effect on the division of labour within families as well as countering the current deficit in shared social responsibility for unpaid care. Finally, segmented labour market theory is offered as an alternative means of assessing labour markets by taking account of factors outside of the employment relationship which, nevertheless, have an undeniable impact on its operation.

(p.57) Neo-classical Economics

Those who believe in the primacy and efficacy of the free market as the central means of distributing resources79 argue that the jobs performed by women and the pay they receive are the result of rational decision-making based on free choice by the individuals concerned. Following this thesis, the price of labour is determined in the same way as the price of all commodities, namely by the forces of supply and demand. Wage levels settle at the lowest rate employers can pay while still being able to attract suitable applicants; discrimination appears to be irrational and unnecessary as women's apparent willingness to work for less pay than men should lead to an increase in their employment across all relevant sectors and occupations which will, in turn, break down gendered segregation and contribute to an evening out of the pay differential.80 As the available statistics reveal, this hypothesis has not proved to be accurate within the Western European Member States, all of which continue to experience gendered segregation and pay gaps which neo-classical economists attribute to women's career choices which are made on the basis of their ‘natural’ capacity as carers. Following this rationale, occupations such as nursing are poorly paid because large numbers of women choose to pursue careers in such sectors on the basis of factors other than pay, such as the altruistic pleasure of ‘caring’ and the resulting satisfaction in community well-being.81

As well as the problematic assumption that such ‘choices’ are made freely and not as a result of social conditioning or within a narrow range of options due to social and economic constraints, the fact that this thesis is premised on the operation of a ‘free’ labour market has been the subject of criticism. According to Hyman, ‘only in limited respects do “labour markets” actually constitute markets’82 as they lack the key determinants such as a saleable commodity.83 Furthermore, their sensitivity to influences other than market factors distinguishes labour markets from other, more traditional places of exchange. Such factors are manifested through the national industrial relations systems which, in the EU context, ‘represent varieties of institutional structures which ensure that the employer-employee relationship is not primarily determined by market forces’.84

The neo-classical view that the labour market constitutes a marketplace in the economic sense is, thus, flawed due to the influence of external pressures which (p.58) serve to dilute the purity of the market so that distribution of relevant resources, through the allocation of jobs and pay rates, is not controlled by market forces. According to Craig et al, this point can be illustrated with reference to three central principles: ‘the rate for the job; no money wage cuts and the right to retain jobs in relation to other potential recruits’.85 In the valuing of labour, unlike in product markets, the worth of a particular job is not fixed by the market but is vulnerable to sectoral, regional, and organizational variation with many employers operating internal markets where increases in pay are based on such non-market factors as length of service. Public sector collective bargaining can be said to result in the closest thing to a ‘going rate’, but even in the public sector, wage rates are subject to wide diversity.86 The preservation of terms and conditions under a ‘live’ employment contract makes wage cuts in monetary terms difficult to achieve, even where drops in productivity occur, and this factor also contributes to the protection of employment. As consideration of these principles demonstrates, social factors are more likely to provide explanations for divergence in pay levels than the economic laws of supply and demand.

This is not to say that the neo-classical perspective can be completely dismissed in analyses of the gendered nature of labour markets. On the contrary, its acceptance into mainstream ideology has informed much of the policy development in this area in recent years. Attempts to transplant market-based principles into the operation of labour markets include the increasing use of short-term contracts and of contracting-out arrangements, by which workers can be legally dismissed and re-engaged through a third party on a lower rate of pay.87 It is, in fact, particularly important to keep the neo-classical perspective firmly in view as some observers have identified a return to the dominance of market factors in the management of industrial relations in Europe.88 In neo-classical theory the market is assumed to be an impersonal mechanism that operates for the greater good, separate from the prejudices which might influence the thought-processes of its participants. In reality, the market is no more or less than the sum of its parts which are constituted by the behaviour of those participants as much as by any other influencing factor and which may well include a propensity to discriminate. Furthermore, the very foundations on which the market is built are vulnerable to the effects of institutional discrimination and the organizing forces of industrial relations' systems themselves, such as ‘management, trade unions and the State—which appear in the literature as gender neutral are indeed profoundly gendered’.89 Perhaps this explains why neo-classical analyses have failed to address the persistence of gendered segregation across Member States in what has otherwise become a fast-moving and (p.59) dynamic social environment. This failure has caused proponents of labour market rationalization to develop an alternative approach which, although similar to the neo-classical perspective in its foundations, develops further the justification of differences in women's labour market position relative to that of men.

Human Capital Theory

Human capital90 theory uses the rationality of free choice as a basis for explaining the relatively low pay and diminution in other terms and conditions of employment which characterize ‘women's work’. Following this view, the reasons for such divergence between the pay rates of women and men arise out of a conscious choice made by some women not to invest in their human capital. This is due to the likelihood that such investment will be wasted when, during the years of child-bearing and rearing, they will cease to participate in the public domain of paid employment and return to the private sphere of the home. ‘Human capital’ is measured by the investment made by an individual in his or her career in terms of such factors as education and training. Investment is translated into monetary worth on the labour market so that an individual who is highly skilled is worth more than an unskilled worker with little formal education and low levels of training. As Polachek and Siebert postulate, women's lower human capital is due to a ‘rational (family wealth maximizing) division of labour in the home due to women's comparative advantage in child-bearing and rearing’.91 This position is underpinned by an assumption that women are less productive than men in economic terms because of their child-bearing capacity.

The closure of the pay gap between men and women in respect of full-time employment, which has arisen partially on the basis of women obtaining more and better qualifications,92 may provide some evidence to support this theory. However, this analysis presents more problems than solutions which are both empirical and conceptual in nature. First, the persistently high value afforded to some forms of qualification over others cannot be easily explained by application of human capital theory. The fact that scientific and technical tasks and appropriate qualifications are valued more highly than the socially important tasks undertaken by qualified primary school teachers indicates that their relative worth owes more to (p.60) the sex of those who predominate within associated jobs than any other factor. Such differentiation also raises questions about whether the relevant (right) factors are rewarded when pay rates are set on the basis of qualifications and skill. Second, evidence suggests that other grounds for extended absence from work do not have the same consequences for an individual's career prospects or the same impact on loss of earnings as breaks related to child-bearing or rearing. The difficulties in obtaining employment experienced by women returning to work after extended absence on such grounds point to the conclusion that the ‘choice’ exercised in relation to the length and consequences of such absences may be that of employers rather than of workers. When such factors are considered together, it is apparent that the human capital perspective fails to adequately explain the persistence of gendered pay gaps.

Human capital theory's conceptual flaw rests in its assumption that all decisions regarding whether to participate in paid employment are made freely and rationally. In reality, the full information on which to base such decisions is rarely available and, even when it is, decisions are likely to be based on how best to manage the conflict between unpaid care and paid employment than the result of free choice. Furthermore, the perpetually low status afforded to ‘women's work’ may produce a self-fulfilling effect by which women who realize that their prospects are poor will not take the risk of making the necessary investment to improve them. However, the most fundamental problem with this particular theory as an explanation for the relatively poor labour market position of women lies in its apportionment of responsibility so that it is the women who find themselves in low paid, low status work who are responsible for their own misfortune. This approach exonerates employers and the State from any responsibility for the operation of labour markets and, by implication, any discriminatory practices. In addition, the responsibility for unpaid care is placed firmly and exclusively on women who implicitly bear the consequences of reproduction through reduced employment prospects, leaving fathers, the wider society, and the State outside of the equation. This perpetuates stereotypical views of working mothers who are perceived as unreliable and lacking in commitment to paid work which, in turn, justifies employers' low risk strategies through precarious employment arrangements, which many women have little choice but to accept, or decisions not to employ them at all.

In both the neo-classical and human capital perspectives, the focus on market rationalization mitigates against the use of legal intervention as a means of improving the quality of women's work on the basis that the market will deal effectively with discrimination where it occurs. The neo-liberal incarnation of this model has been very influential in relation to government policy-making in recent years.93 The empirical basis on which economic theory is predicated has the effect of (p.61) making its application appear plausible and, therefore, persuasive. However, as Fredman has observed, economics is a subjective discipline which is not scientifically objective so that, ‘like law, [it] is deeply ideological’.94 Market discourse applies the conceptual tools of liberal theory so that it engenders a focus on individualism, autonomy, and the role of the State but within the neo-liberal incarnation which applies a specific interpretation of those principles which is not conducive to the attainment of the liberal ideal for all as discussed in Chapter 2. This particular conceptualization of liberal values and their application to policy in recent years has had a particularly damaging effect on analyses of the different labour market experiences of men and women. Once apparently rationalized on the basis of the exercise of individual freedom, such differences cease to be subjected to the scrutiny necessary to effect change. The third and final economic perspective uses some of these features of market rationalization, albeit alongside deeper considerations of other socio-economic factors, and applies them from a feminist viewpoint which seeks to avoid ‘blaming the victim’ and thus results in a more sympathetic, enlightened, and enlightening approach.

Segmented Labour Market Theory

In seeking to explain why women are employed in certain jobs which, on average, attract lower rates of pay than those filled predominantly by men, Beechey95 distinguished between two types of job: primary and secondary. Each type predominates within a particular section of the labour market to such an extent that there are, in effect, two separate markets operating simultaneously. Primary sector jobs have ‘relatively high earnings, good fringe benefits, good working conditions, a high degree of job security and good opportunities for advancement while secondary jobs have relatively low earnings levels, poor working conditions, negligible opportunities for advancement and a low degree of job security’.96 Primary jobs are part of a highly structured internal market within which jobs are organized hierarchically, dependent on skills level and corresponding rewards. Recruitment to all but the lowest level jobs is through promotion within the internal market. Secondary jobs are not subject to the same opportunities for advancement and the low skill levels required in performing such jobs means that training is non-existent or minimal. This detracts from the ability of secondary job holders, who are predominantly female, to make advancements in their careers.

Although dual labour market theory provides a useful starting point in analyses of men's and women's work, it does not explain gendered occupational segregation adequately but merely describes what happens on the labour market. This provides a useful insight into the causes of vertical segregation, by which occupational hierarchies are linked to reward schemes, but does not touch upon horizontal (p.62) segregation through which certain occupations are identified as ‘women's work’.97 Furthermore, Craig et al found that many workers in secondary jobs actually have ‘considerable levels of skill and experience acquired through informal on-the-job training, and undertake work which makes heavy demands on the workers’.98 In her later work, Beechey has asserted that the undervaluing of the requisite skills for the jobs predominantly performed by women rests on the basis of those skills, which are often learned informally in the home and, as such, are not subjected to the same forms of formal measurement applied to other skill sets. Faced with opposition from employers, trade unions have been unable (or unwilling) to establish such skills as being worthy of recognition in pay determination. Such factors have had a profound effect, illustrating that ‘the concept of skill is socially constructed, and an adequate account of the exclusion of women from skilled jobs has to take account of this’.99

The separation of markets into distinct entities, thus, appears to be far more complex than the binary model presented by dual market theory. Craig et al posit the existence of a structured or differentiated labour supply which is ‘created through the interaction of the employment system and the system of social organisation’.100 Through the process of matching jobs with applicants, a market emerges which consists of many diverse segments with differences in the supply of labour dependent on four inter-related factors. First, even if workers enter the labour market with similar characteristics and opportunities, they will acquire different work histories, experience, and skills. These factors will limit the mobility of some workers and may even restrict their prospects. Second, the different social characteristics of individuals which are manifested through such factors as educational qualifications and family connections translate into unequal access to jobs on entry to the labour market. Third, the social and family networks through which workers pool or share income with others lead to employers' assumptions about the relative income needs of specific demographic groups in structuring pay and employment practices. Even if they are not borne out in reality, workers must adjust to those assumptions in order to gain and keep employment. Fourth, different levels of caring responsibilities simply restrict some workers' availability in the labour market. Employers are able to take advantage of workers with high levels of unpaid care commitments by paying lower rates that are not necessarily reflective of productivity levels. Through the interaction of these four factors, it is possible to reach an understanding of women's relative disadvantage in the labour market. The operation of each of the factors allows for the possibility of discrimination which may be direct or indirect and may operate at the organizational level or through more covert, institutional means.

(p.63) The gendering or sex-typing of jobs arises due to a combination of all of these factors so that employers' assumptions and workers' aspirations converge in a cycle of influence. Cockburn has shown how it is not only skills but the whole concept of work which is purposefully constructed on gender lines including the use of tools, machinery, and new technology.101 Her fieldwork explored the relationship between gender and the various physical manifestations of specific jobs which in certain instances is so strongly influenced by the association of particular objects with one or other sex that ‘it is impossible to get a teenage lad to wipe the floor with a mop, although he might be persuaded to sweep it with a broom’.102 Attempts to resist such sex-typing place the dissenter outside of the established workplace norms and the resistance encountered from peers and superiors results in such high social costs that the gendering of jobs is rarely challenged. As Cockburn observed: ‘The dichotomies, separations and power inequalities that occur at home and those that occur at work are related and mutually reinforcing.’103

Identification of the existence and persistence of segmented labour markets on gendered grounds offers a valuable insight into the nature of men's and women's paid work, with women's contribution generally undervalued through its association with the private sphere of the family in which the labour expended is unmeasured and financially unrewarded. Given the stated aims of governments and policy-makers at both national and supranational levels in relation to the furtherance of sex equality, it is notable that little attempt has been made to mount an effective challenge in relation to this factor. A cursory glance at relevant policy developments in recent years actually indicates the opposite as evidenced by the reliance that is placed on the perpetuation of the normative construct of the standard worker model in the distribution of resources and the continued polarization of different working arrangements.104

Dickens has identified a misfit between the changed circumstances of the working relationship and the current regulatory framework which is based on the model of a ‘standard’ arrangement, specifically that of full-time, permanent employment between an employee and single employer.105 If gender is added to the mix, the ‘standard’ worker is male and there is an implicit assumption that he has responsibility for earning, if not all, the majority of the ‘family wage’. Despite its decline and replacement with new forms of social arrangement, this model is the basis on which much employment and social policy continues to be based.106

Women ‘choose’ to work part-time, often through precarious arrangements, because they are expected to combine high levels of unpaid care with paid work. Furthermore, the targeted use of such work as a means of overcoming high unemployment rates illustrates the stubborn refusal of policy-makers to reassess the world of work with a view to uncovering a more reflective model on which to base policy initiatives. While such a refusal may result in injustices to women, it (p.64) very effectively preserves existing arrangements whilst appearing to offer an alternative. The continuing rise of women's labour market participation rates, largely within such ‘atypical’ employment, provides a useful antidote to critics, which, in turn, gives such initiatives ‘the illusion of inclusion’. This self-serving cycle preserves the status quo by enabling women to perform their ‘dual role’ of carer and worker while the assumption of the existence of a male breadwinner within each family unit actually endorses the precariousness of such employment on the grounds that ‘women's work’ is actually extraneous to the family wage.

The continued undervaluing of women's work, and the subjection of the female workforce through marginalization of the forms of working arrangement with which women are predominantly associated, provide clear evidence that the forces of patriarchy continue to influence and shape the nature of employment and related policy within the Member States of the European Union. The absence of any real policy focus on care beyond its commodification further illustrates that it is the nuclear family with its distribution of roles and responsibilities that holds the attention of policy-makers despite its demographic decline. Segmented labour market theory provides the most satisfactory explanation for the continuation and perpetuation of the distinct working patterns and employment experiences of men and women. Furthermore, despite the stated aims of government at both the national and supranational levels to improve women's employment prospects, it appears that labour markets are becoming more segmented over time107 with greater differentiation of work and associated arrangements and regulatory regimes, through their adherence to outdated models of behaviour, are failing to keep abreast of such change.

The division of labour within households, although the most significant determinant of women's labour market participation, is arguably the most difficult aspect of human activity to shape or influence by regulatory means. However, as Chapter 5 asserts, by adopting a joined up approach to policy-making aimed at reconciling the demands of unpaid care and paid work it is possible to establish a normative framework capable of influencing the organization of private as well as public relations between individuals and the State. The rationalization for such intervention rests on the recognition that the provision of care for the vulnerable members of any community, including family units, carries wider social responsibilities than those which are capable of being discharged within the confines of the care relationship itself.

Conclusions

Given the gendered nature of unpaid care, it is important to consider it alongside the commodified labour market work that (female) carers typically engage in. This enables full consideration of the two, as yet unresolved, aspects of an individual's (p.65) life which, although intrinsically valuable to our overall well-being, continue to comprise a source of personal conflict. The main source of this conflict is the inability of those engaged in the non-negotiable work of caring to conform to the practices ascribed by established and apparently unyielding structures surrounding paid work which dictate how, where, and when it should take place. This non-conformance has resulted in the exercise of ‘alternative’ strategies, such as the growth in part-time work, which are often accompanied by a reduction in legal protection against the vagaries of the market which is heralded as the determinant of what are deemed to be appropriate standards of behaviour. In fact, the operation of unfettered forces within labour markets is illusory as the various institutional factors that influence outcomes in this respect make their manipulation largely a matter of policy choice. As such, it is possible and desirable to seek alternative ways of conceptualizing and organizing ‘work’ which take account of the full range of human activities relevant to the regulation of paid work, including its intersection with unpaid care. Such approaches should necessarily challenge the dominant neo-liberal conceptualization of the traditional liberal values of independence, autonomy, and freedom in order that they might be achievable for all members of society. This quest for alternative approaches is in fact necessary in order to realign labour law with the substantial changes that are taking place in the context of the employment relationship and the world of paid work generally. This necessitates labour law's consideration of the full range of human activities with the ultimate social goal identified as being autonomy for all citizens regardless of personal characteristics such as gender, race, age, sexuality, degree of physical or mental ability, or caring responsibilities. This vision for the future regulation of work, although apparently at odds with the current conception of liberalism as perceived through the neo-liberal policy domain, is in fact perfectly compatible with its underlying and sustainable ethos. The rationalization for a public ethic of care to be recognized on the grounds of social morality will be further developed in Chapter 4 in which its proposed realization through an employment rights framework will be considered.

Notes:

(1) M. Barbera, ‘The Unsolved Conflict: Reshaping Family Work and Market Work in the EU Legal Order’, in T. Hervey and J. Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Social Rights: A Legal Perspective (Oxford: Hart Publishing, 2003), 139–60.

(2) Manifested in political and legal systems through, for example, the organization of government into specific portfolios and departments, the composition of judicial structures with specialist courts, and the arrangement of supporting institutions such as social and welfare services. This demarcation strongly echoes the existing dichotomization between the ‘private’ (family) and ‘public’ (paid work and political participation), see Chapter 2.

(3) Eg, J. Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (New York: Routledge, 1993); D. Bubeck, Care, Justice and Gender (New York: Oxford University Press, 1995); E. Feder Kittay, Love's Labor: Essays on Women, Equality and Dependency (New York: Routledge, 1999); M. Fineman, The Autonomy Myth: A Theory of Dependency (New York: The New Press, 2004); A. Alstott, No Exit: What Parents Owe their Children and What Society Owes Parents (New York: Oxford University Press, 2004).

(4) (New York: Basic Books, 1989).

(5) Ibid, 176.

(6) Ibid, 175.

(7) Namely pregnancy and the restricted ‘protected period’ of maternity following childbirth, see Chapter 5.

(8) See K. Lynch, J. Baker, and M. Lyons, Affective Equality: Love, Care and Injustice (Basingstoke: Palgrave MacMillan, 2009).

(9) On the point that care is both an emotional state and an activity, see D. Bubeck, ‘Justice and the Labor of Care’ in E. Feder Kittay and E. Feder (eds) The Subject of Care: Feminist Perspectives on Dependency (New York: Rowan and Littlefield, 2002), 163.

(10) Note 3 above, 101.

(11) Ibid, 103.

(12) Ibid, 104.

(13) Of course this is not to deny the reality of long-term care provision for those who are chronically ill or profoundly disabled and who require high degrees of care throughout their often long lives.

(14) On the issue of different types of moral expression, see C. Gilligan, In a Different Voice: Psychological Theory and Women's Development (Cambridge: Harvard University Press, 1982). Although Gilligan never definitively claimed that the ‘different voice’ was gendered, this is how her findings have been widely interpreted.

(15) E. Feder Kittay, ‘When Caring is Just and Justice is Caring’, in Feder Kittay and Feder (eds), n 9 above, 257–76 at 259.

(16) Ibid, 260.

(17) See below at p 59.

(18) See below at p 57. Contemporary social policy is based on similar assumptions.

(19) Fineman, n 3 above, 40.

(20) Ibid, 41.

(21) Alstott, n 3 above, 52.

(22) Of course this is a highly contentious assumption in itself due to the effects of social conditioning, itself subject to cultural diversity, and the fact that pregnancy is not always the result of rational decision-making. The classification of care-giving as a matter of individual choice enables circumvention of society's collective responsibility to take care of those who are vulnerable through their status as either dependant or carer.

(23) M. Nussbaum, ‘Human Capabilities, Female Human Beings’ in M. Nussbaum and J. Glover (eds), Women, Culture and Development: A Study of Human Capabilities (Oxford: Oxford University Press, 1995), 61–104.

(24) This includes the provision of formal care to supplement rather than replace that provided informally, for example, as a form of respite.

(25) See G. Meagher, ‘Is it Wrong to Pay for Housework?’, Hypatia, 18/2 (2002), 52–66.

(26) K. Lynch and J. Walsh, ‘Love, Care and Solidarity: What is and is Not Commodifiable’ in Lynch et al (eds), n 8 above, 33–77, 51.

(27) The concept of ‘quality time’ as care which takes place in reduced time is illusory as its preconditions are grounded in the trust and understanding between individuals built up over a longer period, see J. Tronto, ‘Time's Place’, Feminist Theory, 4/2 (2003), 119–38, 123.

(28) K. Lynch, J. Baker, S. Cantillon, and J. Walsh, ‘Which Equalities Matter? The Place of Affective Equality in Egalitarian Thinking’ in Lynch et al (eds), n 8 above, 12–34.

(29) Ibid, 12.

(30) Ibid and see also M. V. Lee Badgett and N. Folbre, ‘Assigning Care: Gender Norms and Economic Outcomes’, International Labour Review, 138/3 (1999), 311–26.

(31) Kittay, n 3 above and ‘A Feminist Public Ethic of Care Meets the New Communitarian Family Policy’, Ethics, 111/3 (2001), 523–47.

(32) Ibid, 527.

(33) See J. Rawls, Political Liberalism (New York: Columbia University Press, 1993).

(34) Kittay (2001), n 31 above, 532.

(35) Ibid. Which is adopted ‘from the postpartum caretaker, the doula, who assists the mother who has just given birth, not by caring for the infant but by caring for the mother so that the mother can herself care for the infant’.

(36) See Chapter 4.

(37) From S. de Beauvoir, The Second Sex (New York: Vintage, 1949), referred to in Chapter 2.

(38) See C. Hakim, ‘The Myth of Rising Female Employment’, Work, Employment and Society, 7 (1993), 97.

(39) S. Atkins and B. Hoggett, Women and the Law (Oxford: Blackwell, 1984), 18–19.

(40) That is among EU15. Although the statistics presented in this section use EU27 wherever possible, EU15 statistics are used for time series purposes as comparative longitudinal data is not available for all of the 27 current Member States.

(41) European Commission, Reconciliation between Work, Private and Family Life in the European Union (Brussels: Eurostat, 2009), 9. The figures are based on the participation rates of those aged 15–64. For EU27, this figure is 58.3%.

(42) The statistics for 1960 are based on the labour market participation rates of women aged 25 to 49.

(43) European Commission, n 41 above, 20. Figures are for 2006.

(44) Ibid, 24. In 2006 in EU27, 13% of women aged 25 to 49 were on fixed-term contracts compared with 11.2% of men, although the percentage increase for both sexes from 2000–2006 was 2.4%.

(45) In the 2006 Labour Force Survey (EU27), 61.1% of women who work part-time did so due to care commitments or other personal or family reasons compared to 13.9% of men: European Commission (2009), n 41 above, 22.

(46) 43% of men who work part-time did so as they had been unable to find a full-time job compared with just 21% of women, ibid.

(47) For EU27, ibid, 18.

(48) In 2004, it was some 12.7% lower—see European Commission, Report on Equality between Men and Women, COM (2004) 115 final, 4.

(49) European Commission, n 41 above, 34. Based on 25 to 49 age group for EU27. The age group is significant because the average age at which women have their first child is 28 in almost all EU Member States, ibid, 17.

(50) European Commission, Strategy for Equality between Women and Men, COM (2010) 491 final, 6. This is the figure for EU27 in 2008. The gendered pay gap has remained fairly static in recent years and it is significantly higher in the private sector compared to the public sector.

(51) Ibid.

(52) P. Paoli and D. Merllié, European Foundation for the Improvement of Living and Working Conditions, Third European Survey on Working Conditions 2000 (Luxembourg: Office for Official Publications of the European Communities, 2001); C. Fagan and B. Burchell, European Foundation for the Improvement of Living and Working Conditions, Gender, Jobs and Working Conditions in the European Union (Luxembourg, Office for Official Publications of the European Communities, 2002).

(53) Eurostat, The Life of Women and Men in Europe: A Statistical Portrait (Luxembourg, Office for Official Publications of the European Communities, 2000).

(54) Third European Survey on Working Conditions 2000, n 52 above.

(55) Fagan and Burchell, n 52 above.

(56) Third European Survey on Working Conditions 2000 and European Commission (2010), n 50 above, 6.

(57) Organisation for Economic Co-operation and Development, Employment Outlook (Paris: OECD, 2002).

(58) European Foundation for the Improvement of Living and Working Conditions, Quality of Women's Work and Employment: Tools for Change (Luxembourg: Office for Official Publications of the European Communities, 2002), 12.

(59) European Commission (2010), n 50 above, 5.

(60) Ibid, 13.

(61) The remainder do not have a manager.

(62) L. Dickens, ‘Problems of Fit: Changing Employment and Labour Regulation’, British Journal of Industrial Relations, 42/4 (2004), 595–616.

(63) Ibid, 595.

(64) Adopted by the Member States' representatives at the meeting of the European Council in 2000.

(65) See the Presidency Conclusions of the Lisbon European Council of 23 and 24 March 2000, available at 〈http://www.europarl.europa.eu/summits/lis1_en.htm〉 accessed 7 December 2010. The Lisbon Agenda and its articulation through the European Employment Strategy are discussed in Chapter 4 below.

(66) See D. Ashiagbor, The European Employment Strategy: Labour Market Regulation and New Governance (Oxford: Oxford University Press, 2005).

(67) See G. Standing, ‘Globalisation, Labour Flexibility and Insecurity: The Era of Market Regulation’, European Journal of Industrial Relations, 3/1 (1999), 7–37; R. Hyman, ‘The Europeanisation—or the Erosion—of Industrial Relations?’, Industrial Relations Journal, 32/4 (2002), 280–94.

(68) J. Gershuny, Changing Times: Work and Leisure in Post-Industrial Society (Oxford: Oxford University Press, 2000).

(69) Namely the Scandinavian, Southern European, and camel's back models—see N. Le Feuvre and M. Andriocci, Employment Opportunities for Women in Europe, A report of the EU-funded project ‘Employment and Women's Studies: The Impact of Women's Studies Training on Women's Employment in Europe’ (Luxembourg: European Commission, 2003), 16.

(70) See notes 41 and 42 above.

(71) J. Lewis, M. Campbell, and C. Huerta, ‘Patterns of Paid and Unpaid Work in Western Europe: Gender, Commodification, Preferences and the Implications for Policy’, Journal of European Social Policy (2008), 18, 21.

(72) Ibid, 25. See also European Foundation for the Improvement of Living and Working Conditions, Working Time Options over the Life Course: New Work Patterns and Company Strategies (Dublin: Eurofound, 2006).

(73) Lewis et al, n 71 above, 25.

(74) R. Crompton (ed) (1999), Restructuring Gender Relationships and Employment: The Decline of the Male Breadwinner (Oxford: Oxford University Press, 1999); Employment and the Family (Cambridge: Cambridge University Press, 2006); J. Lewis, ‘The Decline of the Male Breadwinner Model: Implications for Work and Care’, Social Politics, 8/2 (2001), 152–70.

(75) S. Giullari and J. Lewis, The Adult Worker Model Family, Gender Equality and Care: The Search for New Policy Principles, and the Possibilities and Problems of a Capabilities Approach, United Nations Research Institute, Social Policy and Development Programme (2005) Paper No 19, at 1.

(76) Ibid.

(77) See p 47 above.

(78) See Chapter 5.

(79) For the most well-known example of neo-classical economic theory applied in the context of sex discrimination, see S. W. Polachek and W. S. Siebert, The Economics of Earnings (Cambridge: Cambridge University Press, 1993). The authors are also proponents of human capital theory (discussed at p 59 below) as the next ‘logical’ step in explaining the persistence of wage anomalies within a ‘free market’ order.

(80) Ibid, 141.

(81) Ibid, 206.

(82) Hyman, n 67 above, 281.

(83) Marx's view was that ‘labour’ is not a commodity, rather the worker sells her (or his) ability to work, making it impossible to measure any quantifiable property with precision as would be the case with a commodity traded in a product marketplace.

(84) Hyman, n 67 above, 281.

(85) C. Craig, E. Garnsey, and J. Rubery, Payment Structures in Smaller Firms: Women's Employment in Segmented Labour Markets (London: Department of Employment, 1984), 5.

(86) A trend which looks set to continue as many public sector employers seek a move towards localized bargaining processes.

(87) See Case C-256/01 Allonby v Accrington and Rossendale College and Others [2004] ECR I-873.

(88) See, eg Hyman, n 67 above.

(89) J. Wajcman, ‘Feminism Facing Industrial Relations in Britain’, British Journal of Industrial Relations, 38/2 (2000), 183, 184.

(90) The theory presented here should be distinguished from the use of ‘human capital’ as a means of classifying and measuring the contribution that humans make, for example to organizations and in social and economic terms, as a tangible asset incorporating such factors as the knowledge, skills, abilities, and capacity to develop and innovate. This conception of human capital has much in common with Sen's Capabilities Approach (see Chapters 2 and 7) as both ‘put humanity at the centre of attention, although the narrower view of the human capital approach fits into the more inclusive perspective of human capability’, A. Sen, Editorial: Human Capital and Human Capability, World Development, 25/12 (1997), 1959, 1959–60.

(91) Polachek and Siebert, n 79 above. Although, as woman is the only sex capable of child-bearing, her capacity in this respect is exclusive rather than comparatively advantageous.

(92) In 2003 58% of new graduates in Europe were women, Equal Opportunities Commission, Women: Europe's Competitive Edge (Manchester: EOC, 2005), 1.

(93) Although a modified version of the neo-liberal non-interventionist model has been particularly influential across Western Europe. The ‘Third Way’ ideology underpins much of the European Social Model and, in the UK context, New Labour's ‘New Deal’ policy initiatives of the last decade. For a feminist critique of this movement and its effects on women's employment, see S. Fredman, ‘The Ideology of New Labour Law’ in C. Barnard, S. Deakin, and G. Morris (eds), Essays in Honour of Bob Hepple (Oxford: Hart Publishing, 2004).

(94) S. Fredman, Women and the Law (Oxford: Oxford University Press, 1997), 405.

(95) V. Beechey, Unequal Work (London: Verso, 1987).

(96) Ibid, 32.

(97) V. Beechey, ‘Women's Employment in Contemporary Britain’ in V. Beechey and E. Whitlegg (eds), Women in Britain Today (Oxford: Oxford University Press, 1986), 111.

(98) Craig et al, n 85 above, 92.

(99) Beechey, n 97 above, 121; see also A. Phillips and B. Taylor, ‘Sex and Skill: Notes towards a Feminist Economics’, Feminist Review, 6 (1980), 79.

(100) Craig et al, n 85 above, 6.

(101) C. Cockburn, In the Way of Women: Men's Resistance to Sex Equality in Organisations (London: Macmillan, 1991).

(102) Ibid, 38.

(103) Ibid, 41.

(104) Giullari and Lewis, n 75 above.

(105) Dickens, n 62 above, 597.

(106) Ibid, 611; Wajcman, n 89 above, 195.

(107) See Dickens, n 62 above, and Hyman, n 67 above.