A Right to Care?: Unpaid Care Work in European Employment Law (Oxford Labour Law)

A Right to Care? considers the reconciliation of unpaid care and paid work which is among the most pressing and difficult problems currently facing employment law. The incompatibility of carers' needs and the demands of the labor market is commonly identified in relation to working mothers, but is by no means confined to this group as dependency for aspects of personal care can arise as a result of disability, illness or aging. In all of its forms, unpaid care is predominantly provided by women so that its intersection with paid work is severely gendered. In recent years European integration has focused on the need to increase employment rates whilst maintaining labor market flexibility. Many workers who seek to combine unpaid care with paid employment find themselves engaged in increasingly precarious forms of work, yet legal and policy responses have, to date, been reactive and incremental, resulting in a framework which is operationally ineffective in certain respects. Nicole Busby explores the potential for the development of a specific right to care within European employment law which would facilitate the reconciliation of these two central aspects of an individual's life and, in raising the status of care, would assist in the rebalancing of paid and unpaid work between men and women. The central premise is that the current constitutional and regulatory framework is in fact sufficiently flexible to take account of the diverse circumstances and resulting needs of working carers and that the European Court of Justice has the competence and capability to provide the necessary creativity to give effect to such a right. She argues that what is needed to instil coherence and consistency is a specific focus on unpaid work within European employment law, and provides a policy solution on how this should be brought about. Cover Contents Table of Cases Table of Legislation 1. Unpaid Care and Paid Work in European Employment Law Introduction Aims of the Book Background to the Unpaid Care/Paid Work Conflict The Care Component of Labour Law The Liberal Foundations of EU Law The Gender Effect The Care Relationship Justifying a ‘Right’ to Care The Conceptual Foundations of the Right to Care and European Union Law Scope and Structure of the Book 2. Theoretical Perspectives on Work and Care Introduction The Place of Gender in the Unpaid Care/Paid Work Equation The Dichotomization of ‘Alternatives’ A Woman’s Place in the Social Contract Liberalism’s Flaw: Concept or Conceptualization? Putting Distributive Justice into a Rights Framework Equal Treatment or Treatment as an Equal? Liberalism and the Feminist Challenge: Charting a Way Forward Using the Capabilities Approach to Construct a Right to Care Use of the CA as an Evaluative Framework Conclusion 3. Paid Work and Unpaid Care: The Unsolved Conflict Introduction The Care Relationship Defining Care The Affective Dimension Caring for the Carer Unpaid Care in the European Labour Market The Nature of ‘Women’s Work’ Modelling Women’s Labour Market Participation Explaining the Poor Quality of ‘Women’s Work’ Neo-classical Economics Human Capital Theory Segmented Labour Market Theory Conclusions 4. Situating a Right to Care in European Employment Law Introduction A Hierarchy of Rights? The Role of Ideology in the Construction of Employment Law Form or Content? What Choices are the ‘Right’ Choices? Implanting a Feminist Perspective in an Alternative Strategy Legal Intervention in the Employment Relationship The Commodification of Labour Situating a Right to Care within the European Employment Law Framework Pre-existing Authority for a Right to Care? Market Integration and the Right to Care Reflexive Law and the Capabilities Approach Conclusions 5. European Union Law and Policy: Balancing Paid Employment and Unpaid Care within a Market Order Introduction The Development of Social Europe From Social Law to Employment Policy The Legislative Provisions: The Policy Context The EU’s Anti-Discrimination Law and the Conception of Equality: Shifting or ‘Slippery’? The Recast Directive Family-based Rights The Pregnant Workers’ Directive The Parental Leave Directive Ideological Incoherence Protection from Discrimination on the Grounds of Working Arrangements The Expression of Fundamental Rights in EU Law: The Constitutionalization of Norms Conclusions 6. The Case Law of the Court of Justice of the European Union Introduction The Court of Justice’s Interpretive Methods: A Unique Institution? Motherhood and Parenting: The Dominant Ideology of the Court of Justice The Social Context of Atypical Work Laying the Conceptual Foundations: Jenkins, Bilka-Kaufhaus, and Rinner-Kühn Jenkins v Kingsgate The Advocate General’s Opinion The Judgment in Jenkins The Relationship between Women’s Employment and Unpaid Care Bilka-Kaufhaus The Test of Objective Justification Proving Disproportionate Impact Rinner-Kühn Social Policy as a Ground for Justification The Place of Unpaid Care in the Court’s Jurisprudence on Sex Discrimination and Atypical Workers Assumptions Regarding Part-time Workers The Member States’ ‘Broad Margin of Discretion’ The State as Employer Retirement and Work-related Benefits The Normalization of Fundamental Rights: The Tide Turns? Conclusions 7. Conclusions: Solving the Unpaid Care/Paid Work Conflict Introduction What Would a Right to Care Look Like? The Accommodation of Difference: The UK’s Disability Discrimination Act Specific Protection for Carers: Carers’ Responsibilities Legislation in Australia From Recognition of Difference to Self-Actualization The Ongoing Development of a Right to Care: Concluding Remarks Bibliography Index A B C D E F G H I J K L M N O P R S T U W This book considers the reconciliation of unpaid care and paid work which is among the most pressing and difficult problems currently facing employment law. The incompatibility of carers'needs and the demands of the labour market is commonly identified in relation to working mothers, but is by no means confined to this group as dependency for aspects of personal care can arise as a result of disability, illness or aging. In all of its forms, unpaid care is predominantly provided by women so that its intersection with paid work is severely gendered. In recent years European integration has focused on the need to increase employment rates whilst maintaining labour market flexibility. Many workers who seek to combine unpaid care with paid employment find themselves engaged in increasingly precarious forms of work, yet legal and policy responses have, to date, been reactive and incremental, resulting in a framework which is operationally ineffective in certain respects. Nicole Busby explores the potential for the development of a specific right to care within European employment law which would facilitate the reconciliation of these two central aspects of an individual's life and, in raising the status of care, would assist in the rebalancing of paid and unpaid work between men and women. The central premise is that the current constitutional and regulatory framework is in fact sufficiently flexible to take account of the diverse circumstances and resulting needs of working carers and that the European Court of Justice has the competence and capability to provide the necessary creativity to give effect to such a right. She argues that what is needed to instil coherence and consistency is a specific focus on unpaid work within European employment law, and provides a policy solution on how this should be brought about. The reconciliation of unpaid care work and paid employment is among the most pressing and difficult problems currently facing employment law. Nicole Busby assesses the potential to situate a right to care within employment law, and for the recognition of carer status as a means of protecting against discrimination in employment.