A History of Regulating Working Families: Strains, Stereotypes, Strategies and Solutions

Since it emerged as a policy objective at the turn of the new millennium, reconciliation of work and family has been an important theme in feminist scholarship in labour law, not least because it centres the realities of managing paid work alongside the necessary yet unpaid work of caring and maintaining households, and because it brings to the fore critical questions about labour law’s normative assumptions and its ‘ideal’ subjects.¹ In their recent book, Nicole Busby and Grace James, both of whom have contributed to feminist scholarship in this area already, revisit the subject with a systematic study of the UK policy and legal developments pertaining to regulation of working families. Rather than focus simply on workers with care obligations, as both labour law and work–family balance (WLB) provisions and policy frameworks tend to do, the book centres all participants in the care relation, including those who are recipients of care and may be either future (ie, children) or former (ie, the elderly) workers. In doing so, Busby and James emphasise (and, indeed, methodologically put into practice) the relationality and interdependence that are borne out by lived experiences of caregiving within families, contra the normative ideals, or myths, of autonomy, self-reliance and un-encumbrance that have too long informed policy and regulation in liberal states like the UK.

As we learn from the book’s substantive introduction, this relational approach is informed by US legal scholar Martha Fineman’s vulnerability theory.² Vulnerability—or the recognition that all humans are always inherently and universally vulnerable, albeit uniquely so at different stages of life and due to specific embodiments and positionalities—is a direct challenge to neo-liberal valorisation of independence and vilification of dependency. While Fineman is not the only scholar to put forth this sort of an ontological critique of liberal subjectivity,³ her take has been particularly influential among law and policy scholars, including labour lawyers,⁴ not least because it asks specifically that legal frameworks be reoriented around the ‘vulnerable subject’ who requires care. It also positions the state and its institutions (including law) as key to developing resilience against the risks and harms associated with human vulnerabilities at different stages of the life course and calls on states to act accordingly (p. 8). Although Fineman’s theory has been developed against the US regulatory and policy backdrop, Busby and James see it as useful in scrutinising developments in the UK, especially given the ideological and policy legacies of neoliberalism therein. Specifically, they suggest that the vulnerability lens ‘offers a conduit for re-evaluating the relevant dominant legal discourses and frameworks that have developed over time’ and helps to ‘reveal flaws’ in these discourses and frameworks to allow us to ‘reimagine an approach that better values care relationships’ (p. 9).

Methodologically, the authors adopt a legal history approach combined with policy framing analysis to foreground the ways in which the ‘problems’ and policy ‘solutions’ related to work and family have been articulated over time, and to evaluate the impact of these policy choices on working carers and recipients of care. Each of the book’s substantive chapters examines a specific set of interventions, including those pertaining to women and work (chapter 2), combining paid work with unpaid care (chapter 3), children’s welfare (chapter 4) and eldercare (chapter 5). Throughout, the authors are attentive to wider normative, political and economic contexts as well as broader socio-economic shifts that have influenced thinking on responsibilities for care work. Among others, they attend to the rise and subsequent erosion of British welfare state, and the influence of EU law, policy and jurisprudential developments during the UK’s membership.

The book’s subtitle refers to the notion of stereotype, and as the book persuasively (if depressingly) documents, a plethora of hardened stereotypes have permeated much policy in this realm. In chapter 2, the authors trace the history of women’s paid work, from the Industrial Revolution until now. They demonstrate that women’s classification as secondary earners tasked with the bulk of unpaid domestic and care labour is an ideological and policy legacy that has continued to shape women’s labour market patterns despite various legal interventions seeking to remove barriers to their participation. The authors chronicle half a century of legal developments, starting with anti-discrimination legislation focusing on pregnancy and marital status (1960s–70s), through the rise of ‘flexible working’ policies (1980s–90s), to the development of so-called ‘family friendly’ policies starting with New Labour’s ‘Fairness at Work’ agenda, later reframed as WFB approach by Coalition and Conservative governments in the austerity-dominated new millennium. All these interventions, they conclude, have re-entrenched rather than challenged outdated notions of ‘the family’ and the associated gendered divisions and differential valuations of productive and reproductive labour with enduring negative consequence for women’s choices and personal freedoms.

Indeed, it is not just women whose choices and freedoms relating to paid work and family obligations have been limited by law and policy through stereotypical assumptions rooted in ‘outdated and unsubstantiated essentialist beliefs’ (p. 80). As the authors demonstrate in chapter 3, the state’s relative non-engagement in men’s personal decisions on how best to fulfill their roles as fathers has also affected men’s lived experiences, including their ability to participate in caregiving. Despite claiming to promote ‘shared parenting’, the legal and policy interventions comprising the WFB framework have continued to reaffirm and further entrench ideologies of masculinity and fatherhood based on the ideal of male breadwinning and ‘parental absence from care’ (p. 83). As the authors observe, not only is this out of step with the shifting identities of mothers and fathers as borne out by empirical research on their lived experiences; it is incompatible with the framework’s own aspirational claims of ‘shared parenting’ that it seeks to promote but practically fails to support.

As noted at the outset, the book’s relational commitment is reflected also in its analytical inclusion of those whom the work-family policy typically positions are care recipients. In chapter 4, Busby and James consider the transformation of law’s approach to children as subjects of regulation, from demise of child paid labour to the state’s gradual acceptance of responsibility for children’s education and welfare. While they assess the regulatory transformations relating to children as overall positive, the authors caution that they have been ultimately instrumental to needs of others, ‘be that individuals, institutions or the state’ (p. 111), with children’s needs and their welfare remaining peripheral in those interventions. Indeed, they posit that the developing ‘family friendly’ employment laws are exemplary of this. These laws construct children as ‘inevitably dependent’ but rather than account for their needs and wellbeing, they frame children as the essence of the problem or encumbrance (for working women, families, caregivers on whose autonomy they encroach) to which the WLB framework seeks to respond.

The theme of invisibility continues in chapter 5, which tackles the evolution of policy related to older citizens and eldercare. As Busby and James surmise, but for a brief ‘golden age’ of cradle-to-grave welfare state provision in the 1950s and 60s (which, as the authors note, was also steeped in paternalism), the liberal myth of autonomy and self-reliance has largely permeated the way in which law and policy has approached aging. More recently, erosion of welfare state supports, restructuring of public care and pensions, and the politics of austerity have even further shifted the responsibility for personal welfare to older people themselves, and their families (primarily women). At the same time, the needs of those who provide unpaid care to dependent older relatives are largely invisible, ignored or downplayed in policy, with work–family provisions pertaining to eldercare also limited and disappointing.

In each chapter, Busby and James use vulnerability theory to reveal the stereotypes and assumptions that drive WFB policy and which policy and institutional arrangements further entrench. They also reflect on the possibilities inherent in the adoption of the vulnerability approach as the normative reference point for policy and regulation. As they posit, the rearticulation of policy around the ‘vulnerable subject’—as opposed to the fictive ‘liberal subject’ or the standard model worker—has the potential to open-up regulatory space in new ways that recognise caregiving and dependency as ‘inevitable constituents of human experience’ (p. 57). Such recognition would directly challenge the enduring gender-coding of care, its undervaluing and unquestioned allocation to the family (ie, ‘private’) realm, and the invisibility of those who require and receive care. Crucially, as the authors explore in their conclusion, this sort of rearticulation necessitates major institutional transformations and a responsive state, together with wider societal recognition that care is our collective obligation.

Rich in historical detail, robustly evidenced, and persuasively argued, the book provides a valuable contribution to the discussion on the regulation of the interface between work and family in the UK, but it is sure to resonate also with audiences and scholars researching this subject in other countries where neoliberal policies have been influential. The book’s critiques of law’s gendering and constitutive operations, the shortcomings of non-discrimination and formal equality approaches, and its findings relating to the selective and instrumentalist use of policy are unlikely to surprise feminist scholars. At the same time, its elaboration and application of the vulnerability approach and the discussion of policies pertaining to care recipients alongside those targeting care providers make this a novel take on feminist critique in labour law, that also articulates persuasive grounds for policy change. Given the book’s positioning of employment and labour laws alongside several other policy and regulatory regimes that govern the work-family interface, the book would be of interest to readers of this journal, but also to researchers in family law, elder law, non-discrimination law, as well as legal history and social policy. While scholarly, the book is sufficiently accessible to be used in teaching in law, social policy and gender studies.

Footnotes