Nicole Busby

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

The reconciliation of unpaid care and paid work is arguably the most pressing and difficult problem currently facing employment law. 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 increasing 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. This book aims to explore 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 individuals life and 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 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. What is needed to instil coherence and consistency is a specific focus on the caring rights of employees.

Affirmative Action in Women's Employment: Lessons from Canada

The use of affirmative action to increase womens representation in employment is recognized under European Community law. The European Court of Justice has identified affirmative action permissible under EC law and what constitutes reverse discrimination, deemed incompatible with the equal treatment principle. Despite these developments, gendered occupational segregation - vertical and horizontal - persists in all member states as evidenced by enduring pay gaps. It is widely argued that we now need national measures which take advantage of the appropriate framework and requisite political will which exists at the European level. Faced with a similar challenge, the Canadian government passed the Employment Equity Act 1986 which places an obligation on federal employers to implement employment equity (affirmative action) by proactive means. Although subject to some criticism, there have been some improvements in womens representation since its introduction. This article assesses what lessons might be learned from Canadas experience.

Only a Matter of Time

The European Court of Justice has ruled that the limitation of retrospective membership of an occupational pension scheme is contrary to the principle of effectiveness. The two-year limitation currently provided by UK law severely reduces the practical effect of the right to claim retroactive membership under European Community law. The Court found that the six-month time limit for the commencement of legal proceedings was not prohibited by application of the principle of effectiveness as, on the contrary, such time limits assist in the provision of legal certainty. The development of European law in this respect will be explored and the practical impact of the Courts ruling considered.

The Equality Deficit: Protection against Discrimination on the Grounds of Sexual Orientation in Employment

The provisions of UK law offer no specific protection to gay men and lesbians suffering discrimination in the workplace on the grounds of sexual orientation. Such discrimination may take many forms and can result in ‘fair’ dismissal in certain circumstances. This article considers the degree of legal protection available under current provisions and investigates possible sources for the development of specific anti-discrimination legislation. It is concluded that, despite the application of certain aspects of employment law, the level of protection afforded to this group of workers amounts to an equality deficit in comparison to the legal redress available to those discriminated against on other grounds. Although the development of human rights legislation may have some application in this context, the combination of institutionalized discrimination and wider public policy concerns suggest that the introduction of specific legislation aimed at eliminating such discrimination in the United Kingdom is still some way off.

Regulating working families in the European Union: a history of disjointed strategies

Families in market economies worldwide have long been confronted with the demands of participating in paid work and providing care for their dependent members. The social, economic and political contexts within which families do so differ from country to country but an increasing number of governments are being asked to engage, or better engage, with this important area of public policy. What seems like a relatively simple goal – to enable families to better balance care-giving and paid employment – has raised several difficulties and dilemmas for policy makers which have been approached in different ways. This paper aims to identify and critique the nature and development of the means by which legal engagement with work–family reconciliation has, historically, been framed in the European Union. In doing so, and with reference to specific cohorts of workers, we demonstrate how disjointed the strategies are in relation to working carers and argue that the EU is unlikely to provide the legal framework necessary to bring about effective change in this fundamentally important area of social policy.

The evolution of gender equality and related employment policies: The case of work–family reconciliation

European Union (EU) law and policy on work–family reconciliation has developed by way of two parallel but often incoherent movements. The jurisprudence of the Court of Justice of the EU has been a driving force in its interpretation of sex discrimination provisions in the context of claims concerning women’s labour market experiences, which have subsequently been codified, for example, to provide positive rights in relation to pregnancy and maternity. Alongside this development, policy has been linked to wider economic concerns such as the goal of full employment leading to specific measures intended to equalize employment conditions for those with non-standard working arrangements and to encourage shared parenting between men and women. The lack of a specific focus on work–family reconciliation as a goal for law and policy in its own right has resulted in a patchwork of provisions rather than an overarching framework. The net result is that EU law provides an unsatisfactory response to what has been termed the unsolved conflict between paid work and unpaid care. Recent developments may provide a solution. The Commission has reinvigorated its interest through its ‘New Start’ initiative – a package of both legislative and non-legislative measures under the auspices of the European Pillar of Social Rights launched in April 2017. Provisions incorporate, inter alia, a proposed directive that would amend the parental leave regime and introduce paid paternity and carers’ leave. This article provides a critique of law and policy to date and assesses the potential for a coordinated EU strategy for work–family reconciliation, focusing specifically on gender equality. It is argued that, even with the enhanced interest of the Commission, it may be difficult to achieve a coordinated approach to what has always been a contentious policy area within a rapidly changing EU although the United Kingdom’s departure from the EU may provide an opportunity in this respect.

The EU Charter of Fundamental Rights

Although still very much in its infancy, the passage of time since the EU Charter of Fundamental Rights (CFR) was given legal effect means that it is now possible to assess its impact and to make some nuanced, if tentative, predictions regarding its future. This chapter will begin by providing an overview of the CFR’s place in the EU’s acquis, charting its development from a fledgling bill of rights to an instrument imbued with full constitutional force. The CFR’s (intentional and incidental) consequences for labour law will be considered as will its capacity as a deconstructive force in relation to the pre-existing hierarchy of rights by which it offers the potential for greater integration and realisation of the full range of rights and corresponding enhancement of social rights’ status. Key to this potential development is the CJEU’s interpretive function by which it has the opportunity to use the CFR as a catalyst for the further integration and extension of social rights. The chapter will conclude with an analysis of the Court’s interpretation of the CFR’s provisions to date.

Enforcement of Fundamental Workers’ Rights

This study provides an overview of international and European law regulating a selection of fundamental workers’ rights (freedom of association and the right to collective bargaining, age antidiscrimination, the right to health and safety at work). It then analyses their enforcement in seven Member States (France, Greece, Hungary, Italy, Sweden, Netherlands and United Kingdom). On the basis of these findings, it explores possible ways forward for improved enforcement of fundamental workers’ rights in the European Union, not only in times of economic crisis, but in the long term.