Feminist Perspectives on Employment Law

Anne Morris, Thérèse O'Donnell

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135345464
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Whilst equal pay, maternity rights and sex discrimination, including sexual harassment, have received attention from feminist scholars, there is an increasing awareness that it is the whole of the working environment that must be examined if real progress is to be made.

CHAPTER 1
EMPLOYMENT LAW AND FEMINISM

Anne Morris and Thérèse O’Donnell

The series of Feminist Perspectives on…began with the Foundational Subjects of Law, and one of its stated aims was to bring feminist perspectives to bear on areas of the law which had not traditionally been seen as obvious candidates for that kind of analysis.¹ In that sense, employment law might be thought to be different, in that significant chunks of it are recognisably and directly to do with women (sex discrimination, equal pay, maternity rights), and this means that women are at once identifiable as appropriate or ‘proper’ subjects within that category of legal study. This can, however, be a mixed blessing, since it offers the temptation to ‘ghettoise’ and assume that there are particular topics (‘women’s issues’) with which feminists should concern themselves (or, indeed, to which they should restrict themselves). Whilst, at the very least, this denies the wider relevance of feminism, it also ignores the fact that a piecemeal approach is not going to achieve the fundamental changes which are necessary if women are to be able to participate fully and equally in society—a participation which requires a just reward for the work they do and the contributions they make, both paid and unpaid. Further, focusing only on the laws which purport to deal with discrimination can encourage the view that, since there are now laws which call for equal pay, outlaw sex discrimination and provide for maternity leave, any lingering ‘inequalities’ must, by definition, result from the different choices which women make in their lives, rather than from conscious or unconscious bias.

In any event, the aspects of employment law which are most obviously of relevance to women are far from being the whole, or even the bulk, of what constitutes the complex and increasingly wide ranging legal regulation of the working relationship. Indeed, it could be argued that one of the principal defects of the ‘discrimination’ legislation, which is intended to achieve equality for women in the workplace, is the very fact that it is so readily identifiable and discrete. It is peripheral—a bolt-on rather than a central theme, an afterthought rather than a guiding principle. Just as much in employment law as in other areas, therefore, it is important for feminists to challenge the notion that there are limits to the relevance of feminist perspectives and to reject attempts to restrict feminist scholarship to topics seen as peculiarly appropriate for women (as students and teachers). In many ways, it is an ideal subject in which to challenge assumptions about the scope of feminist scholarship, because there are few areas of life on which employment law does not impact:

Work is central to our lives. Paid or unpaid, it is the way in which we meet needs, create wealth and distribute resources. It is a source of personal identity and individual fulfilment, social status and relationships.²

This is true for men as well as women but, whilst there are men in low paid, insecure jobs (or no job at all), and whilst there are men who would like to be able to reconcile more easily the demands of work with family responsibilities, it is still women—throughout the world—who shoulder the principal responsibility for the attempt to combine work outside and within the home while being, in general, less well rewarded than men.

The aim of this collection of essays is, therefore, to extend the focus beyond the obvious issues in which feminists might be assumed to be interested, but to do so without ignoring the very real differences which influence the working and family lives of women and men. The volume began to take shape in the months after the General Election of May 1997 and the emergence of a new government with a new(ish) agenda. On the face of it, things began to look up: the government reacted favourably to the Parental and Family Leave Directive and the Part Time Workers Directive, set up the Low Pay Commission, introduced legislation which led to the National Minimum Wage Act, and launched the National Childcare Strategy. A Women’s Unit was set up to tackle issues such as the pay and working conditions enjoyed by women. Unfortunately, this had a rather inauspicious start and the Unit was later re-launched under new management, in the person of Margaret (Baroness) Jay, who felt the need vehemently to deny that she is a feminist: ‘In politics, feminism is seen as negative, complaining about things; it’s perceived to be about separateness. You don’t have to be negative like that.’³

FEMINIST PERSPECTIVES ON EMPLOYMENT LAW

Such sentiments, coming from the head of the Women’s Unit, lead inevitably to the question of what—if anything—feminist perspectives can bring to the category of law termed employment law.⁴ The first problem concerns the definition of ‘employment law’ itself. Whenever, as academic lawyers, we attempt to define the confines of a subject within the curriculum, we invite disagreement. Few would dispute that employment or labour law deserves its place as an important component of legal studies, but its boundaries are extremely fluid, so much so that it is now a very different construct from, say, 30 years ago.⁵ At a very basic level, employment law could be said simply to concern the regulation of the contract of employment between employer and employee. English common law has clung resolutely to the idea that the employment relationship is a mutually agreed contract between two autonomous parties. Of course, this has always been a fiction, since it singularly fails to take account of trade unions and of the abiding imbalance of power between the parties (see, in this volume, Chapters 9 and 5, by Anne Morris and Jenifer Ross, respectively), but it is the contract model and its shortcomings which have shaped modern employment law—together with collective bargaining, on the one hand, and increasing employment protection legislation, on the other. The latter began in the 19th century with laws directed at the protection of the worker at work (for example, the Factories Acts), and in the enjoyment of her wages (for example, the Truck Acts and the Wages Councils), but developed and accelerated in the 1960s and 1970s. As a result of this explosion in national and European legislation, employment law has become a vast and extremely complex subject, so much so that it is very tempting for employment lawyers to focus simply on the workplace and to forget about the life that goes on outside it. Certainly, this is a temptation into which policy makers and legislators have fallen in the past, as may be seen in the various rules which singularly fail to take account of the realities of workers’ lives. An obvious example is the maternity rights scheme, under which maternity leave is available. This is welcome (even if largely unpaid and only for 14 weeks) but, at the end of such leave, the worker is expected to return to work, as though she is somehow unaffected by the fact that she now has a dependent child to care for. In other words, giving employment rights (maternity leave) without also ensuring the wider conditions (available and affordable child care) under which they can be meaningfully exercised is a half-hearted measure—and has been recognised as such by the Women’s Unit.

A move away from this narrow kind of focus is particularly important for feminists, since one of the tasks of feminism is to challenge the traditional categories of law and to make connections where none have been made before. Contributors to this volume thus look beyond the workplace and ask what changes are needed—and, indeed, whether the kind of change we are supposed to be working towards is possible at all (see Collier). Another task is to highlight the diversity of women, the different discriminations they face, and the different ways in which they experience them (see Ashiagbor). For a long time, women have had to listen to those in power (men) telling them what it is they want and/or need (according to changing fashions and economic and social conditions) but it is vital that women are able to make known to those who make the laws what it is that they need. There are a number of readily identifiable themes which run through this volume. In particular, a number of contributors reflect in different ways on the promotion, from various quarters, of the idea that we need to have a ‘new’ relationship between work and family. In addition, and inevitably, given the less than successful record so far, another of the themes is the question of how best to achieve ‘equality’ for women in paid employment. Underlying all the contributions, however, is the belief that, despite individual successes and changing expectations, there is much that remains to be done and challenged if women are to be able to participate fully in a society which— whether or not it should be—is built around paid (productive) employment. The idea of this volume is not simply to consider women within the workforce or to restrict discussion to sex discrimination and equality measures. The idea is, rather, to bring to bear on the myriad issues raised by the idea of employment a feminist analysis. Women are no longer an adjunct to the study of employment law (if they ever were); they are an integral and vital part of the labour market:

…in the longer term, the increased participation of women in the labour force is a critical factor, if not the critical factor, if we are to sustain our living standards and our social systems. In a world with fewer workers and more dependants, we can no longer afford to consign women to a lesser role in the workforce. Unless we tackle the inequalities which persist in the labour market, we will not prosper. It’s as simple as that.⁶

The apparent indispensability of women workers is not, however, a sufficient precondition for changes which benefit them (and others). Joanne Conaghan, in a chapter which eloquently lays the theoretical foundations for succeeding chapters, notes the increasing visibility of gender issues, while, at the same time, suggesting that scholars have not yet seriously engaged in the deeper theoretical issues which inform the changes taking place. She signals many of the themes which are the focus of succeeding chapters, including the heterogeneity of women, the problems inherent in a collective bargaining system which traditionally presupposed that workers’ interests coincided and, importantly, the ‘gendered assumptions which derive from the ideological privileging of productive over reproductive work’ (see page). Whilst acknowledging the criticisms raised by post-modernists of essentialism being an inevitable consequence of standpoint feminism (what is ‘woman’?), Conaghan suggests that there are still real benefits to be reaped from women-centred feminist critiques. At the very least, this identifies equality issues as a pervasive rather than a discrete theme and, at best, ‘highlights the deep ideological crisis at the heart of traditional labour law discourse—the collapse of the homogeneous worker and the collective framework which purports to serve him’ (see page).

In considering labour law as an instrument of economic policy, Conaghan suggests that economics and feminist concerns are not necessarily at odds—as seen, for example, in the increased participation of women in the labour market. Nevertheless, the application of economic arguments does not, by and large, benefit women. Thus, the seemingly bi-partisan interest in employment flexibility is flawed if there is only unilateral flexibility to the benefit of the employer (the same notion which preoccupies Jenifer Ross in the context of the contract of employment). Similarly, Conaghan points to flaws in the neo-liberal economic agenda from a feminist perspective, certainly as far as the former’s conceptions of law, state and economic organisations are concerned—as is illustrated very clearly in the public sector welfare provision (or lack of it).

The idea that women will voluntarily care for the sick, elderly and other needy individuals—both within and outside their own families—is the theme of Debra Morris’ chapter. She focuses on an aspect of women’s work which is often overlooked, namely, their work in the voluntary sector and charts the changing face of participation in the sector, from 19th century philanthropy—described (controversially) by Proschaska as an escape from boredom for leisured women—to the commercial reality facing today’s volunteers. Whether the voluntary sector is defined ‘broadly’ or ‘narrowly’, it involves many billions of pounds and is an important aspect of working lives. Morris points out that, while volunteering may occur only on an occasional basis, other volunteers follow patterns of work more akin to full time employment. Importantly, she considers how gendered such input is: women are involved more at ‘grassroots’ level and men are more closely associated with management— a distinction which is reflected in the difference in the visibility afforded to the two types of participation. Women’s involvement is often considered an extension of their ‘naturally’ altruistic nature and so, not being ‘real work’, it is not worthy of payment (compare productive and reproductive work). The increasing formalisation of the sector is most clearly evidenced in several employment tribunal cases discussed by Morris. Such formalisation makes more visible both the volunteers themselves and the potential for their exploitation, and Morris considers issues which arise in the context of paying volunteers (including, for example, the minimum wage). She concludes that a new era of volunteering is emerging and that, in particular, there has been a clear shift from the ‘Lady Bountiful’ model to that based on a financial rationale—costing out what the service is worth. Generally, this means an enhanced status for volunteers, but this may come at a cost for the service users, for whom the changes may be less welcome.

The diversity of the inequalities found within the labour market are the focus of Diamond Ashiagbor’s chapter, which highlights the intersection between gender and race at work. Her main concerns lie with law’s current lack of recognition that different types of discrimination can be experienced cumulatively by individuals. It is hidebound by notions of instances of discrimination which are discrete and which fail to address adequately the harms experienced by, in particular, Black and Asian women who have to decide if they are discriminated against for being women or being persons of colour. She discusses the difficulties which feminists face in using the category ‘woman’ as the foundation for critiques of law, and considers that feminist legal theory and critical race theory must be drawn upon together for a fuller analysis regarding the employment experiences of Black and Asian women. Ashiagbor touches on the concept that social identity comprises a number of strands, with gender and race comprising relevant, but not sole, strands. This approach, which identifies workers as being more complex and having more concerns than crude race or gender discrimination constructs would permit, is a theme also present in Thérèse O’Donnell’s chapter, in which she points to workplace bullying as an example of when an individual is treated detrimentally for reasons which can be so complex and manifold that the bully him/herself is incapable of articulating them, but which almost certainly stretch beyond sex and race discrimination. Ashiagbor considers not only the peculiar location of these women in the labour market as a result of both gendered segregation and racial segregation but, also, the feasibility of the anti-discrimination laws being reformulated to answer the challenge presented by discrimination against Black and Asian workers. She views the absence of a single Anti-Discrimination Commission as a key problem in the failure to address cumulative discrimination. She suggests that a one stop agency, which could adopt an ‘holistic’ approach to multiple discrimination, would begin to recognise the complexities of discrimination which to date have escaped law makers.

Some of these complexities are reflected in Thérèse O’Donnell’s chapter, in which she discusses workplace bullying and the absence of a satisfactory legal mechanism to deal with this problem. She considers the emergence of the concept of the workplace bully as a legal actor and the profiling which has taken place in psychological studies of bullies. These studies provide an interesting insight into some of the gender issues present in bullying, and the fine line between assertiveness and aggression. Parallels in the mentality between bullies and other abusive actors are drawn and O’Donnell points out that, while the manipulative nature of sexual abusers or torturers is widely recognised by lawyers, the adult bully addicted to abuse remains something of a shadowy figure. The prevalence of bullying is illustrated by the growth of organisations which seek to support the victims but, at the same time, there remain difficulties in defining bullying—a fact which bedevils this area and which is reflected in the absence of an appropriate law to cope with the problem. O’Donnell analyses the rise and fall of the Dignity at Work Bill 1984, which was anticipated as the panacea to the ill of workplace bullying. Its failure leads to a consideration of the remaining law and its inability to provide a bespoke remedy for victims. Not only do evidential issues concerning potential actions provide huge barriers to victims but, also, the humiliation of admitting to victimhood, the diverse reactions of victims to harassment, and the need to display actual mental injury all operate to disincline complaint and further isolate those who suffer in silence.

Alice Belcher engages with the idea of ‘assertiveness’ in the form of assertiveness training within the general context of staff development— and the problems which it can highlight. In her analysis, Belcher reflects on the experiences of Scottish universities with interestingly variable results. She suggests that the fluidity of the concepts of staff development, equal opportunities and assertiveness training hamper research into, and the advancement of, these areas and she believes that even more complicated problems arise in the specialist area of women’s development training. She concludes that, if the normative connections between the three components are established and work in the way envisaged, then assertiveness training must be included in women’s development training. However, in the light of reality, Belcher does question whether assertiveness training is valuable from a feminist perspective and whether it can be counter-productive. She points out its weakness in its inherent dependence for its success on the context in which it operates. Belcher comments on the problems of sexual stereotyping by male colleagues of women’s assertive behaviour as ‘aggressive’ (see the notion of the ‘femaleboss-as-dragon’ in O’Donnell’s chapter). Perhaps, argues Belcher, the solution lies in diluting the ‘maleness’ of the devices, such as assertiveness training, which are used to achieve equality in the workplace, or, at least, in raising the profile of traditionally feminine workplace concerns and of the ways of addressing those concerns. While it is the latter issue of ‘feminising’ the workplace to which both Anne Morris and Richard Collier turn their attention, with varying conclusions on its viability, Jenifer Ross focuses on the gendered nature of the contract of employment.

Having identified the contract as still being the keystone of the employment relationship, Ross refers to the difficulties inherent in such a contractual characterisation of the employment relationship and expresses concern at the blind acceptance of a notion of equality between the parties. She suggests that the inadequacy of ‘the contract’ to encompass and reflect modern working life is an inevitable legacy of its focus remaining firmly fixed on the paradigm of the full time working male breadwinner. This is a point taken up in Anne Morris’ chapter, which refers to the characterisation of certain workers’ benefits as ‘women’s benefits’, and in Nott’s chapter when she refers to occupational segregation. Ross outlines some examples of those workers to which the contract is currently blind, including those commonly referred to as ‘atypical’ workers—in particular, part time workers, homeworkers and volunteer workers. She points to the irony of ‘flexible’ work being less an issue of flexibility for female workers (for whom it is a Hobson’s choice) than a way of retaining real flexibility for employers (a point noted by a number of contributors). In relation to volunteer workers, Ross refers to the expectation of altruism on the part of this group and the notion that this work is done as an expression of civic duty rather than as a form of remunerative employment—a theme echoed in Debra Morris’ chapter, where she discusses the multifarious reasons for workers entering the voluntary sector. For Ross, there is a potential for injecting new life into the contract of employment and using it to achieve more for working women by using the influence of anti-discrimination legislation. This influence would come from equal opportunities policies which the judges can—when they choose—consider as more than mere ‘mission statements’ and which Ross describes as at least a fig leaf of modesty over the vulgarity of indifference to equal opportunities. Essentially, there is no legal barrier to the...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Series Editors’ Preface
• Contributors
• Table of Cases
• Table of Statutes
• Table of Statutory Instruments
• Table of European Legislation
• Table of Abbreviations
• Chapter 1 Employment Law and Feminism
• Chapter 2 Feminism and Labour Law: Contesting the Terrain
• Chapter 3 Equal Opportunities, Staff Development and Assertiveness
• Chapter 4 The Sweat of the Brow or the Breaking of the Heart?
• Chapter 5 Marginal Notes? Gender and the Contract of Employment
• Chapter 6 Volunteering: A Nice Little Job for a Woman?
• Chapter 7 The Intersection Between Gender and ‘Race’ in the Labour Market: Lessons for Anti-Discrimination Law
• Chapter 8 ‘Feminising’ the Workplace? Law, the ‘Good Parent’ and the ‘Problem of Men’
• Chapter 9 Workers First, Women Second? Trade Unions and the Equality Agenda
• Chapter 10 Mainstreaming Equal Opportunities: Succeeding When all Else Has Failed?
• Chapter 11 Equal Pay: Theory and Practice in Two Countries