The evolution of gender equality and related employment policies
| Author | Nicole Busby |
| Published date | 01 June 2018 |
| Date | 01 June 2018 |
| DOI | http://doi.org/10.1177/1358229118788458 |
| Subject Matter | Articles |
Article
The evolution of gender
equality and related
employment policies:
The case of work–
family reconciliation
Nicole Busby
Abstract
European Union (EU) law and policy on work–family reconciliation has developed by way
of two parallelbut often incoherent movements.The jurisprudence of theCourt 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 sub-
sequently 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 anoverarching 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 strategyfor work–family reconciliation,focusing specifically
The Law School, University of Strathclyde, UK
Corresponding author:
Nicole Busby, The Law School, University of Strathclyde, Lord Hope Building, 141 St James Road,
Glasgow G4 OLT, UK.
Email: nicole.busby@strath.ac.uk
International Journalof
Discrimination and theLaw
2018, Vol. 18(2-3) 104–123
ªThe Author(s) 2018
Article reuse guidelines:
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DOI: 10.1177/1358229118788458
journals.sagepub.com/home/jdi
on gender equality. It is argued that,even with the enhanced interestof the Commission, it
may be difficult to achieve a coordinated approach to what has always been a contentious
policy areawithin a rapidly changing EU althoughthe United Kingdom’s departurefrom the
EU may provide an opportunity in this respect.
Keywords
work-family reconciliation, gender equality, Brexit
Introduction
The European Union (EU) legal acquis does not currently provide an adequate legal
response to what has been termed the ‘unsolved conflict’ (Barbera, 2003) experienced by
many individuals – overwhelmingly women – in trying to reconcile the provision of
unpaid care with paid work. There is no fundamental ‘right to care’ u nder EU law
(Busby, 2011). Issues that arise before the courts are problematized with legislative
development occurring through subsequent codification of the case law and piecemeal
adjustments to pre-existing provisions and institutional arrangements rather than any
systemic redesign. Work–family reconciliation has never been a specific EU policy goal
but rather has been subordinated to wider social and economic objectives such as full
employment (Lewis, 2006). This combination of a policy acquis based around broad
economic objectives and the reactive and narrow development of the legal acquis has
shaped the way in which unpaid care’s intersection with paid work has been incremen-
tally provided for within the EU (Busby and James, 2015).
The European Commission has in recent years been proactivelyengaged in attempts to
strengthenand extend the existinglegal framework, most notablyby proposing a Work-Life
BalancePackage (European Commission,2008a), which includedtwo legislativeproposals
to amend existing directives on self-employment and protection for pregnant workers.
Althoughthe former was adopted,the latter was blockedin the Council due to the opposition
of certainmember states, mostnotably the United Kingdom,and was formally withdrawnin
2015(European Commission,2015a). In response,the Commission has recentlyrenewed its
effortsspecifically to addresswomen’s underrepresentationin the labour marketby taking a
broader approach through the announcement of its initiative, the New Start to Support
Work-Life Balance for Parents and Carers (European Commission, 2017a) proposed in
April 2017 as part of the European Pillar of Social Rights (European Commission,
2017b). However, progress is not guaranteed. The sovereign debt crisis, increased global
competitionand the EU’s existentialcrisis evidentin the United Kingdom’sdecision in June
2016 to ‘Brexit’ have destabilized the Union and, in times of economic difficulty, social
initiatives have historically been marginalized (Busby, 2011). That the Commission has
brought forwardits ‘ground breaking’ proposal(Caracciolo di Torella, 2017,p. 196) at this
particular moment shows both boldness and a commitment to engender change, but its
survival and transposition into meaningful legislation is far from assured.
This article provides a critique of the EU’s work–family reconciliation law and policy
to date and assesses the potential for the development of a cohesive future framework
Busby 105
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