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The Legal Regulation of Pregnancy
and Parenting in the Labour Market

Why is the law failing to protect pregnant workers and parents from detri-
mental treatment in the workplace? This theoretically informed book, which
draws on the findings of a large scale, Nuffield Foundation funded, study
of pregnancy-related workplace disputes, explores the legal regulation of
pregnancy and parenting in the labour market.
Using an epistemology that draws primarily on critical feminist debates,
theories and critiques, the book adopts a necessarily female standpoint and
seeks to answer why, despite positive policy ambitions and ample legislation,
law is failing to protect pregnant workers and parents. Whilst sensitive to
the limits of law’s ability to bring about social change, the book asks whether
it is the direction of current policies that need attention, or the substance of
the legislation that is flawed. Is it the application of the law in courts and
tribunals that fails working families or the mechanics of the employment
dispute resolution and tribunal system that needs adjusting? This book
will interest academics, students and practitioners of law and social policy
interested in employment law and discrimination.

Grace James is a Lecturer in Law at the University of Reading where

her research interests include family-friendly employment policies and
discrimination law.
The Legal Regulation of
Pregnancy and Parenting
in the Labour Market

Grace James
First published 2009
by Routledge-Cavendish
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada
by Routledge-Cavendish
270 Madison Avenue, New York, NY 10016
Routledge-Cavendish is an imprint of the Taylor & Francis Group,
an informa business
This edition published in the Taylor & Francis e-Library, 2008.
“To purchase your own copy of this or any of Taylor & Francis or Routledge’s
collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.”

© 2009 Grace James

All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic,
mechanical, or other means, now known or hereafter
invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in
writing from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
James, Grace, 1972–
The legal regulation of pregnancy and parenting in the labour market /
Grace James.
p. cm.
1. Pregnant women – Employment – Law and legislation –
Great Britain. 2. Parental leave – Law and legislation – Great Britain.
3. Work and family. I. Title.
KD3161.J36 2009
344.4101′44–dc22
2008024867

ISBN 0-203-88632-1 Master e-book ISBN

ISBN 10: 0–415–43904–3 (hbk)

ISBN 10: 0–203–88632–1 (ebk)

ISBN 13: 978–0–415–43904–6 (hbk)

ISBN 13: 978–0–203–88632–8 (ebk)
Contents

Acknowledgements vii

1 Exploring pregnancy, parenting and employment in

the twenty-first century 1
Transformations within workplaces and families 1
The aims and structure of the book 7
A theoretical framework 9

2 The scope and nature of pregnancy-parenting/

workplace conflicts 21
Introduction 21
The tribunal study: methodology 22
The scope of pregnancy-parenting/workplace conflicts and the
‘litigation gap’ 24
The nature of pregnancy-parenting/workplace conflicts 28
The causes and implications of pregnancy-parenting/workplace
conflicts 32

3 Legislation and policy: promoting good pregnancy-

parenting/workplace relationships? 37
Introduction 37
Policy ambitions and the family-friendly ‘package’ 39
Legal rights in the event of pregnancy-parenting/
workplace conflicts 50
Conclusions 61
vi Contents
4 Tribunals’ approaches to pregnancy-parenting/
workplace conflicts 65
Introduction 65
Investigative and restrictive: the extremes of law
enforcement at tribunals 68
Unawareness 70
Conduct and capability 76
Redundancy 80
Conclusions 85

5 Pregnancy-parenting/workplace conflicts and

tribunal procedures 87
Introduction 87
Time limits and the limits of time 90
Legal advice and representation 97
Conclusions 100

6 Challenging and reforming pregnancy-parenting/

workplace regulation 103
Introduction 103
Family-friendly policies: promoting genuine choices 105
Pregnancy-parenting/workplace conflicts: promoting
individual protection and access to justice 115
Conclusions 123

Appendices 127
Bibliography 131
Index 143
Acknowledgements

This book is the culmination of research that began over 10 years ago, as
part of a PhD completed at the University of Wales, Aberystwyth (James
2000) and has since evolved into something much broader, which I hope will
be of interest to as wide an audience as possible. There are many people to
whom I am extremely grateful for helping facilitate the writing of this book:
thanks in particular to the Nuffield Foundation for funding the more recent
employment tribunal data collection and initial analysis, and to the Arts and
Humanities Research Council for funding the invaluable research leave. In a
similar vein, thanks to the School of Law at Reading University for providing
a term’s study leave and supporting my AHRC leave: in particular I am
grateful to those for whom my absence on leave meant some additional work
(especially Rachel Horton and Nicola Countouris). I am grateful to Oxford
University Press for granting relevant permission to cite Crompton’s model
of household relations (Crompton 1999: 205) and, of course, to the editors at
Routledge-Cavendish for being so very patient and helpful throughout the
book writing process.
I am extremely grateful to the researchers who have helped in terms of data
collection and data input over the years (Tracy Williams, Rojin Nassereslam
and Tiha Simbeye), and to Paul Chatfield for essential statistical advice and
analysis. Especial thanks to those who have encouraged me to develop my
thoughts on this subject through discussions or comments on draft chapters
or conference papers: particularly Diane Rowland, Eugenia Caracciolo Di
Torella, Therese Callus and Rachel Horton. Any errors are of course my
responsibility. On a more personal note, my thanks to a number of close
friends and family members for their continuous, unconditional support and
understanding: you know who you are! Especial thanks to mum and Angela
for proof reading at very short notice. Finally, and most importantly, my love
and thanks to Christopher for daily doses of Igglepiggle and much needed
cuddles at the end of the day, and to Richard for being such a wonderful,
supportive and ever-loving partner.
1 Exploring pregnancy, parenting
and employment in the
twenty-first century

If the tensions between the demands of capitalist employment and the

requirements for care can no longer be resolved via the domestication of
women, then contemporary societies will have to seek new solutions.
(Crompton 2006: 60–61)

Transformations within workplaces and families

There are two interrelated and inter-dependent contexts for this book’s
exploration of labour law’s engagement with pregnancy and parenting:
workplaces and families. These two contexts are and always have been inter-
dependent, although government’s official rhetoric often suggests otherwise,
by promoting policies as though they are a response to the (relatively) recent
demographic changes that have shifted women from the private sphere of
the home into the public space of the labour market (see Conaghan 2005:
27–28 and fn 37). The transformations within both of these contexts have
been significant in recent years, but neither ‘spaces’ are static; both are in a
state of flux, continually shaped by and impacting upon each other in ways
that have consequences for all parties who operate and develop within them.
The transformations as a whole raise numerous challenges for parents, pri-
marily in terms of how they are able to manage their responsibilities as
unpaid care-givers and paid workers, challenges that often arise and require
choices to be made as soon as a pregnancy is confirmed. Even the
announcement of the latter, before any dependent child appears, can, as this
book will explore, detrimentally impact upon workplace relationships, to the
point of relationship breakdown. The transformations also pose relatively
new challenges for employers, especially in light of the increasing number
of women participating in the workplace, in terms of how they manage
the impact of pregnancy and parenthood upon their businesses and, at a
wider level, in terms of the assumptions they are now able to make about
the people, female and, increasingly, male, they employ. Policy makers
are also challenged as they can no longer assume that care-giving can be, or
will be, provided by women in the home on a full-time basis, and hence the
2 The Legal Regulation of Pregnancy and Parenting in the Labour Market
government is increasingly required to (re)consider how it regulates preg-
nancy and parenting/workplace relationships in particular and, for that mat-
ter, work/life balances in general.
The first context for the book is the changing face of the labour market and
the consequential demands and restrictions it now places upon its workforce,
and working parents in particular. We are now experiencing what has been
termed the ‘new economy’ (see Conaghan et al. (editors) 2002). The market
today no longer follows the Fordist model of employment relationships
which offered (male) jobs for life with standard working hours and wide-
spread union support for periods of individual or collective discontent.
The decline of manufacturing industries, together with technical advances,
managerial innovations, increased foreign investments and the development
of multinational enterprises manufacturing in cheaper developing countries,
and cross-border labour migration, aided by huge technological and trans-
portation advances, have all played a part in altering the way that work is now
organised, produced and regulated (see D’Antona 2002 and Klare 2002). The
labour market is now challenged and shaped by global expectations, with
many industries increasingly driven by the need for ever speedier transactions
across various time zones.
This ‘new economy’ has transformed the roles and experiences of many
individual workers as the employment relationship has become more precar-
ious and intense (Fudge and Owens 2006). It has been suggested that the
bonds and mutual trust, once implicit within many employment relation-
ships, have been eroded (Sennett 1998: 27 cited in Crompton 2006: 5).
De-layering and reorganisation, downsizing and outsourcing, the need for
leaner organisations (Womack et al. 1990 cited in Crompton 2006: 5), target-
setting and rescheduling of worker availability inherently characterise many
workplaces today. Changes have created demand for more flexible or atypical
workers who are, for example, willing to retrain as needed, to work outside
‘normal’ (9–5) contracted working hours, to work from home or on a part-
time or temporary basis. Furthermore, the age of the workforce in the UK is
now higher, and the looming ‘pension crisis’ has led to an increase in the age
of retirement, meaning that today’s workers may well need to remain in the
labour market beyond what is generally regarded as the normal retirement
age in order to support the ‘new economy’ and avoid poverty in old age. In
addition, for many, the increasingly long hours demanded by employers,
especially when coupled with competitive workplace cultures and strategies
which often link pay to performance and set high targets in order to increase
outputs, means that individuals, especially fathers of young children and
those in professional and managerial employment, often work over and
above what is considered reasonable (Bishop 2004). For those in more precar-
ious employment this need to work longer hours is compounded by the low
rate of pay, regulated by national minimum wage legislation, because it pre-
vents many workers from reducing hours without incurring major financial
penalties, ensuring a compliant workforce with little ‘real’ alternatives but to
 Exploring pregnancy, parenting, employment in the twenty-first century 3
work whenever work is available, and for as long as they are needed (see
Conaghan 2002: 62). These transformations arguably create a more intense
day-to-day work experience and cause increased instability and a decline in
settled career paths. Furthermore, within this context, workers who want to
progress must increasingly rely on their own initiative and be more willing to
change jobs and location in order to do so (Crompton 2006: 5). This in turn
can create higher staff-turnover in certain industries or at certain levels of
industry which can, in turn, make employment relationships more difficult to
manage. In addition, and of particular concern in this book, as Gallie notes,
the ‘sharp intensification of work effort’, which is evident across the EU,
poses ‘serious risks of work stress and tension between work and family life’
(Gallie 2002: 97, cited in Crompton 2006: 124).
Of course, one of the most important transformations in terms of the
market’s workforce, and one that is of particular contextual interest for this
book, is the huge increase in the number of women now active in paid
employment. In the UK in 2007, 70 per cent of women of working age were
in employment (Social Trends 2007: 49), compared to 56 per cent in 1971 (see
also Duffield 2002), a rise mirrored in other EU Member States (pre-May
2004) where an estimated six million of the 10 million jobs created between
1997 and 2001 were occupied by women (European Commission 2001), the
greatest leap in the figures being amongst women of childbearing age. Indeed,
in the UK the number of employed women with pre-school children has risen
dramatically, from 28 per cent in 1980 to 53 per cent in 1999 (Desai et al.
1999). Significantly, whilst the changes brought about by a globally competi-
tive market have clearly had an impact on all workers, in many ways women
have tended to bear the brunt of these developments. It is, for example,
women who dominate the sectors of the labour market that are developing
fastest (such as the service industry) and that offer the lowest remuneration
(care work and the service industry). Women are still, partly as a result of job
segregation and partly as a result of sex discrimination, paid significantly less
than men for the work they do. Mothers are often obliged to work unusual
hours in order to fit their labour market participation around childcare. The
‘flexibility’ required by the labour market can actually conflict with the needs
and desires of working parents, and can ultimately exploit women’s labour
market power by providing them with little alternative but to work hours
(which may include night shifts and weekend work) which fit around child-
care needs (see further Cockburn 1991, discussed in Caracciolo Di Torella
2001: 330). It is mothers who are thus most likely to be employed in the
precarious, atypical work that binds the ‘new economy’ together (see Fudge
and Owens 2006): nearly 40 per cent of women aged 16–59 with dependent
children work part-time (see Social Trends 2005, cited in Lewis and Campbell
2007: 10), and a recent study shows how, following childbirth, many profes-
sional and managerial women downgrade to lower-skilled part-time work
(Gregory and Connolly 2008).
Furthermore, as stated above, women have long supported the labour
4 The Legal Regulation of Pregnancy and Parenting in the Labour Market
market by providing unpaid care in terms of domestic labour and re-
production (Conaghan 2002), and this they have done irrespective of their
involvement in paid employment. Despite the erosion of the traditional male
breadwinner/female care-giver model of household relationships across the
industrialised world (see Crompton 1999), and that both parents often need
to contribute to household finances (see below), there has been no corres-
ponding shift in relation to the gendered burden of household chores and
care-giving responsibilities (see Brannen 2000; Brannen and Moss 1991;
Crompton 2006: chapter 6; Gregson and Lowe 1994). Hence women, and
especially working mothers, often take on a ‘second shift’ (Hochschild 1989),
by caring for the family and participating in the labour market. In so doing
they are supporting the ‘new economy’ in ways that may cause them indi-
vidual work/life conflict (see Crompton 2006: chapter 5 and Crompton and
Lyonette 2008) and in ways that often go unrecognised and undervalued, but,
as more women, and particularly mothers of pre-school children, participate
in paid employment, as Conaghan points out, ‘the implicit relationship has
become explicit to the point at which it is required to undergo a process of
substantial renegotiation’ (Conaghan 2005: 29).
The second context for this book is transformations that have occurred
‘within’ family units. Many changes have occurred in relation to family forms,
the expectations of its members and how its functions are managed. In terms
of family construction, boundaries are nowadays both ‘flexible and perme-
able’ (McKie et al. 2005: 13), or at least the diversity of family form in society
is now more transparent given that those functioning outside of the trad-
itional family unit attract less stigma (McGlynn 2006: 28). There has, for
example, been an increase in the number of heterosexual couples cohabiting,
with 36 per cent of the public having been in a cohabiting relationship and 11
per cent of people currently cohabiting (Barlow et al. 2008). In fact 25 per
cent of all children are now born to cohabiting couples (National Statistics
2005), indicating that for many, parenting is no longer synonymous with
marriage, and the fact that divorce is now more common increases the
number of lone parent families as well as step- and non-resident families.
In addition, it has been suggested that the nature of intimate relationships
has evolved. They are now viewed by social theorists as less traditional, and
increasingly characterised by individualism (see Beck and Beck-Gernsheim
1995 and Giddens 1992). For Giddens, this transition indicates more ‘pure’
relationships which are fluid and contingent and exist only to enable the
parties to take advantage of the rewarding elements of the relationship
(Giddens 1992). Others suggest that the transformations, the result of much
more diversity within relationships and where individualisation shapes them,
are simply reflections of the ‘normal chaos of love’ (Beck and Beck-
Gernsheim 1995). At one level this new ‘culture of individualism’ is viewed as
the rise of selfishness but, at another level, it can be viewed as a positive
reflection of a societal shift towards more egalitarian partnerships (Lewis
1999 and 2001) where individual identities (be it as worker, mother, father,
 Exploring pregnancy, parenting, employment in the twenty-first century 5
partner or whatever) and self-fulfilment (in the workplace and outside of the
workplace) are growing in importance. However, to suggest that individual-
ism drives all decision making or outcomes regarding identities and self-
fulfilment underplays the role of other factors, such as gender, class, location,
dominant ideologies and moral rationalities, themselves fluid and vari-
able over time, in determining social positions and decision making (see
Crompton 2006: chapter 1).
Family forms are now more diverse, and accepted as such. Individual
expectations in terms of family relationships are clearly undergoing change.
There have also been related developments in the nature of how families are
actually expected to function. The primary tasks of the family unit remains to
provide informal care, domestic labour and to socialise children (McKie et al.
2005: 11) but this is nowadays characterised by greater demands and operates
in a more expert-driven context. In essence, parenting has become more
‘paranoid’ (Ferudi 2002) and ‘intense’ (Hays 1996), and is often moulded by
higher cultural expectations than was the case even a generation ago. For
example, the growth of ‘parental determinism’, the idea that everything to do
with a child is determined by the actions of his or her parents, nowadays
places expectations at an unrealistically high level and ‘sets up all parents to
fail by setting goals that cannot possibly be attained’ (Ferudi 2002: 76). The
growth in ‘parenting identity’, whereby parents increasingly live their lives
through their children, competitive parenting and the professionalisation and
politicisation of parenting all contribute to a growing paranoia (Ferudi 2007
and 2002). This ultimately provides a more demanding context for all those
who parent, and mothers in particular, in the twenty-first century.
Ironically, despite these changes in relation to what form families take, how
individuals within families are eager to mould their increasingly multifaceted
identities and the intensification of parenting, the actual division of tasks
between mothers and fathers in two-parent homes have, in practice, altered
very little. The need to provide care and other domestic labour continues.
Parents now however, in the light of increasing workplace participation of
mothers, have to find new ways of managing their time so as to ensure that
their work and family responsibilities are met. It is here that the gender
inequalities within families are most obvious: men continue to exercise more
power than women in familial relationships, not least because they are still
less confined by the demands of domestic life and childcare and have greater
access to and control over family finances (see Arber and Ginn 1995; Irwin
1999; Jamieson 1999). The dominant ideology of motherhood (see below)
still operates as a restriction on women’s genuine choices and real, worker-
led, flexibility in this context. The gendered division of domestic labour has
continued despite women’s workplace participation and women continue to
take primary responsibility for the care of home and hearth, although there is
evidence of some, albeit very slow, change (see Crompton and Lyonette
2008). For working mothers their ‘second shift’ (Hochschild 1989) often
requires the creation and management of boundaries1 between the public and
6 The Legal Regulation of Pregnancy and Parenting in the Labour Market
the private domains; boundaries which are ‘simultaneously sustained and
challenged in and by daily life’ (Cunningham-Burley et al. 2005: 27). It seems
that working mothers use a number of strategies in order to ‘balance and
weave’ together the often conflicting strands of their days (Hattery 2001).
These include reducing the time spent in paid employment, getting up very
early in the morning or working into the night, employing nannies and other
domestic help, utilising family and friends, working non-standard hours and
using public childcare facilities. These strategies need to be adapted as cir-
cumstances alter across time (see Brannen 2000; Hattery 2001; Houston and
Marks 2005; Parcel and Cornfield 1999) and suggest that the ideal of a ‘dual-
earner-dual-carer’ family (a term developed by Crompton 1999; see also
Gornick and Meyers 2003; see further, chapter 6 in this book) is still, for
many, out of reach. Many mothers are, nowadays, ‘grappling with a “new
motherhood” that retains traditional views associated with care for and
socialisation of children, while embracing newer values associated with paid
work, forming an independent and individual identity’ (Cunningham-Burley
et al. 2005: 27).
New family forms and transformations in the labour market have not
altered the traditional gendered hierarchy when it comes to division of
domestic labour (see further Crompton 2006: chapter 6). Having made this
point, it is however worth noting that men are increasingly expected and, it
seems, increasingly willing and wanting to contribute to this unpaid care-
giving dimension of family life (see Collier 1999; Hatten et al. 2002; Lewis
2000; O’Brien 2005 and Warin et al. 1999; discussed in Caracciolo Di Torella
2007). Evidence suggests that fathers are contributing more in terms of time
spent doing household chores but they start from a very low base (Brannen
2000: 36; Gershuny 2000; Gershuny and Jones 1987) and their contribution is
still, on the whole, mostly task-specific (Warde and Hetherington 1993) and
small (Brannen et al. 1994). In terms of childcare, fathers appear to have
increased their contribution in terms of involvement, but this tends again to
be task-specific and involves contributing to the more pleasurable tasks of
childcare, such as playing, bathing and taking the children out for the day
(Wheelock 1990). Managing, organising and planning childcare and
responsibility for the overall wellbeing of the child is still conducted, for the
most part, by mothers (Brannen 2000: 37; Brannen et al. 1994). For most
families the gendered divide of housework and childcare is a disappointing
reality, but it seems fair to say that we are in a period of flux and evidence
suggests that the current social reality is capable of development. Such devel-
opment does however require that fathers, as well as mothers, be given the
opportunity to alter their paid work and care patterns (see Kilkey 2006).
Although law is of course limited in what it can achieve, it is increasingly
important, where possible, for law and policy to provide realistic opportun-
ities for families to organise and manage their domestic and paid work time in
a way that suits them, thus allowing those who want a more equal division of
domestic labour to achieve it (see chapters 3 and 6).
 Exploring pregnancy, parenting, employment in the twenty-first century 7
The aims and structure of the book
This book principally asks what current law does and what law can and
should do in an age of ‘intensive parenting’, continued gender inequalities at
work and at home and a demanding ‘new economy’, to effectively regulate
pregnancy-parenting/workplace relationships. As stated above, the points at
which pregnancy, parenting and labour market participation intercept raise
numerous difficulties and dilemmas for individuals and policy makers. For
the purpose of this book, the legal regulation of ‘pregnancy-parenting/work-
place relationships and conflicts’ focuses mainly on the rights currently avail-
able to pregnant workers and ‘new’ parents (unless otherwise stated), but of
course parenting per se is an ongoing responsibility that has ongoing reper-
cussions for work/family relationships and interactions over a longer time
period than this book is able to explore. Although beyond the scope of this
book, we ought not to allow current legally constructed boundaries to act as
‘limitations on our imagination’ (Fineman 1995a: 7) and further research
is needed to explore the interception between parenting of older children and
the labour market. In a similar vein, this book mainly considers the impact of
relevant laws on two-parent families with children born to them, yet law’s
impact on single parents or shared parenting families, as well as those with
fostered, adopted or step children, is of growing significance and in dire need
of consideration.
At its core then, this book, drawing on contemporary feminist and social
theory insights (see below) as well as recent research, including original
empirical data from a study of relevant employment tribunal decisions (‘the
tribunal study’ – see chapter 2), aims to deconstruct law’s engagement with
the interception between pregnancy, early parenting and the workplace. In so
doing it reveals a fundamentally high level of pregnancy-parenting/work-
place conflicts, the nature and implications of which are explored in order to
highlight how childbirth can still cause tensions that upset workplace equi-
libriums to the point of relationship dissolution, impacting not only upon
the lives of individuals but also upon wider political goals of social justice
and substantive gender equality. Chapter 2 also exposes a ‘litigation gap’, a
gap between the numbers of people experiencing conflict and the numbers
seeking legal redress, which underscores the inability of the current legal
framework to effectively regulate pregnancy-parenting/workplace conflicts.
The remainder of the book explores this ‘litigation gap’ further, consider-
ing whether, and if so to what extent, various aspects of law’s engagement
with pregnancy and parenting/workplace relationships are responsible for it.
This consideration offers a vehicle for investigating the legal regulation of
pregnancy-parenting/workplace relationships, rather than the search for an
‘answer’. With this in mind, chapter 3 outlines and explores the broad policy
framework aimed at reconciling the demands of pregnancy and parenting
and the workplace. The importance of family-friendly policies and their abil-
ity to perpetuate or challenge dominant ideologies and social constructs
8 The Legal Regulation of Pregnancy and Parenting in the Labour Market
(such as motherhood, fatherhood and the unencumbered worker – see below)
are considered, as are laws which provide the mechanisms for legal redress
if working relationships break down. The chapter, in seeking an explanation
for the ‘litigation gap’ within the legal standards that are set by law, reveals a
variety of flaws in the legal approach to pregnancy-parenting/workplace rela-
tionships which may contribute to restricting access to justice in this con-
text. Overall, however, chapter 3 demonstrates a commitment to tackling the
tensions caused by pregnancy-parenting/workplace interactions, suggesting
that other attributes of the legal framework need to be explored. Hence,
having considered the standards that are set by law, chapter 4 investigates the
enforcement of relevant laws at employment tribunals and asks whether, in
terms of application, the aims of the legislation are met so as to support the
minority of women who do litigate following pregnancy and parenting/
workplace disputes. The chapter, drawing primarily on evidence from the
tribunal study, reveals a lack of consistency in how tribunals approach
pregnancy-related unfair dismissal claims. It demonstrates how tribunals can
reinforce traditional assumptions about pregnancy and motherhood and how
a restrictive approach can undermine claims and hence limit the current law’s
ability to offer adequate redress. It also shows, in a more positive vein, how
better approaches, which are more investigative in nature, are able to locate
the dismissal in its appropriate wider social context, acknowledge the hidden
nature of this type of wrongdoing and accommodate the particular, and in
many ways ‘distinct’, experiences of those litigating following pregnancy-
related dismissals.
Chapter 5 then examines procedural aspects of the tribunal system, and,
through a discussion of time limits and (lack of) support structures, reveals
its attempt to ‘fit’ pregnancy and parenting into the existing legal mould, with
little consideration for the particular characteristics of the cohort it seeks to
protect. Once again, here by highlighting the inadequacy of the mechanics of
the law in this context, flaws in the law are evident, and its current ability to
provide legal redress to individuals, and hence advance substantive gender
equality, is called into question. The final chapter suggests what legal reforms
and further research are needed in order to improve the current legal frame-
work. Recommendations for closing this particularly acute ‘litigation gap’ are
presented and the wider picture, taking into account lessons learned through
the process of the book’s evolution, is re-examined. The latter, it is argued,
involves promotion of access to ‘genuine’ choices in terms of how individuals
manage their work and family responsibilities, the realisation of which could,
in time, aid promotion of substantive gender equality.
The process of this exploration as a whole reveals various lacunae in the
legal regulation of pregnancy-parenting/workplace relationships in general
and conflict resolution in particular. Overall, the findings and wider discus-
sions bolster feminist challenges to law’s innate claims to neutrality and
rationality (see further Munro 2007: chapter 2) and the ability of legal rights,
alone, to ever provide adequate solutions in this context (see for example,
 Exploring pregnancy, parenting, employment in the twenty-first century 9
Fineman 1990 and Smart 1989). By primarily adopting a feminist standpoint
epistemology, the discussions locate, reveal and provide an opportunity to
challenge gendered aspects of law’s engagement with this topic. With this
broad aim in mind, there are a number of interrelated theoretical issues that
will inform, and are developed in context, throughout the book and these are
outlined in the next section.

A theoretical framework
This book adopts a view of theory as a process – one that encourages critical
engagement and reflection, rather than a search for the ‘truth’ (see Bottomley
2000: 25) and one that ensures ‘our ideas do not go stale, that our frameworks
do not entrap us, that we do not render ourselves “deaf” to the noise that is all
around’ (Conaghan 2005: 26). As it evolves, the book draws upon a variety of
debates and constructs that have been of central concern to feminist theorists,
considered here so as to help unpack the developments and flaws in current
legal responses to pregnancy, parenting and the workplace. These include (a)
consideration of whether law, in terms of how it treats women, ought to
seek equality or recognise difference and (b) how the socially constructed
divide between the public and the private might impact upon how we add-
ress, or ought to address, pregnancy-parenting/workplace interactions. It also
includes (c) an outline of the much perused dominant ideology of ‘mother-
hood’, the less explored dominant ideology of ‘fatherhood’ and the notion of
the ideal ‘unencumbered worker’, all of which, as the book will explore, have
an impact upon how relevant law is formulated, applied and experienced.
Finally, (d) when and why individuals engage with law is explored in order to
introduce concepts that are developed and discussed later in relation to the
particular dilemmas faced by employers and employees in pregnancy and
parenting/workplace disputes and in order to provide a framework for articu-
lating the limits of law’s ability to dissolve the tensions often created when
family and workplace responsibilities intercept.

Equality, difference and beyond

The equality/difference debate in law is one that has occupied a good deal of
feminist thought and energy: it is, in essence, a search for equality of
opportunities and condition (see generally, Evans 1995; Munro 2007 and
Sohrab 1993), and although there is much debate over the best method of
achieving gender equality, this overall goal is a generic one. The difference
between substantive and formal gender equality is important here: formal
equality is often associated with the acquisition of basic legal rights, whereas
calls for substantive equality focus on the promotion of social change and
consideration of the relationship between lack of equality and socio-economic
and historical structures (see Bacchi 1990; Flax 1992; Hoskyns 1985;
Kitzinger 1996). This quest for substantive equality is related to calls for the
10 The Legal Regulation of Pregnancy and Parenting in the Labour Market
dismantling of the public/private divide (see below) and the need to appreci-
ate the interdependence of these two spheres (see Thornton 1995 and Boyd
1997) as well as the need for positive or affirmative action (see Fenwick 1998)
in order to counter the theoretical assumptions of law (Foubert 2002: 25).
Whilst most feminist approaches are eager to achieve substantive gender
equality, they differ in terms of the strategies they would adopt in pursuance
of that goal.
The origins of the quest for equality through sameness2 are to be found in
early liberal and first-wave feminism. At the time the term ‘equality’ provided
the necessary vocabulary to fight for women’s emancipation. The liberal
philosophy that underlies the battle for equal treatment was highlighted by
MacKinnon, when she suggested that,

The moral thrust of the sameness branch of the doctrine conforms

normative rules to empirical reality by granting women access to what
men have: to the extent women are no different from men, women
deserve what men have.
(MacKinnon 1983: 220)

It is based primarily upon a desire to remove the structures that prevent

women being ‘like’ men, and thus allowing them to gain equality on that
basis. Advocates of equal treatment are eager to promote gender-neutrality,
because they view this as the best way to ‘liberate women from their role
as primary caretakers and from the dangers of paternalistic protection’
(Williams 1982: 196).
There have been many criticisms of the use of the equality principle in
feminism (see generally Munro 2007; Sohrab 1993), and the most vehement
come from those feminists who advocate that in order to advance women’s
lives by eradicating their exclusion and subordination, women’s difference
from men needs to be highlighted, rather than their similarity. This is an
alternative approach which, as MacKinnon describes, ‘exists to value or
compensate women for what they are or have become distinctively as women
– by which is meant, unlike men; or to leave women as “different” as equality
law finds them’ (MacKinnon 1983: 220). Gilligan, for example, has argued
that males and females have very different approaches to reasoning – that
females possess an ‘ethic of care’ (Gilligan 1982). It is this type of innate
difference between the sexes that, according to proponents of this model,
makes the equality concept redundant. In this sense, the principle of equality,
based as it is on the male norm, is thought to undervalue specifically female
attributes by insisting that women be like men, instead of celebrating their
own unique characteristics (see Finlay 1986; Scales 1981; West 1988; Wolgast
1980). For some advocates of this model, pregnancy, childbirth and mother-
hood are keenly emphasised as ‘profoundly enriching’ female experiences and
are used to underscore why women ought to be treated differently from men
in the quest for equality. Kay, for example, insists ‘that during the episode of
 Exploring pregnancy, parenting, employment in the twenty-first century 11
pregnancy itself the woman’s body functions in a unique way’ and asserts
that ‘we must recognize that unique function in order to prevent penalizing
the women who exercise it’ (Kay 1985: 34). Whilst aware of the problems and
stereotypical assumptions that the term ‘unique’ can promote, Kay nonethe-
less views this as the best way to ensure that women are treated equally to men
in terms of their employment opportunities. West espouses a similar view
of the ‘uniqueness’ of pregnancy, asserting that laws based on equal treat-
ment have failed to bring about substantive equality, and that ‘feminists
must attack the burdens of pregnancy’ rather than deny its uniqueness
(West 1988).
The difference model is problematic, not least because it is based upon
the premise that female attributes such as care-giving, of which pregnancy
and childcare is an important aspect, are unique, natural and in need of
protection. Because of this, it risks presenting women as vulnerable in the
face of competing ideologies, such as those at play in the labour market. It
also risks valorising ‘self-sacrifice as the vocation of femininity’ (Munro
2007: 27), an attribute that can, in the context of family/workplace relation-
ships, be detrimental in terms of how women are perceived. For example, if
self-sacrifice is perceived as an inherent trait of pregnancy and motherhood, a
female worker may be viewed as less committed to work if she is pregnant
(see chapter 2). Moreover, the difference model implicitly excludes men (or
maleness) from this care-giving attribute and thus denies them the opportun-
ity to explore nurturing aspects of their identities which, in turn, limits our
ability to move beyond traditional constructions and divisions of work/
family responsibilities (see chapter 6).
It is clear that the equality/difference debate positions feminists in oppos-
ition to each other in terms of the best way to achieve substantive equality,
or at least there is a continuum along which they might be arranged
(Evans 1995: 129). Whilst still useful for unpacking the details of the cur-
rent legal regulation of pregnancy and parenting/workplace relationships, the
debate has itself, in more recent years, come under considerable attack, as
the choice between equality and difference is, by many, now perceived as a
false one (Sohrab 1993: 159; see also, for example Bacchi 1991; Bock and
James 1992; Conaghan 1993; Flax 1990; MacKinnon 1987; Munro 2007).
More recently, post-modern and critical approaches have moved discussion
away from the ‘unpredictable and uncontrollable cycle of sameness/difference
feuding’ (Murphy 1997: 40) and begun to question the very terms upon which
the debate is based. Whereas the equality/difference debate undervalues the
importance of context, post-modern assessments of women and the law
promote the need to deconstruct universalising aspects of the law and social
categories that perpetuate gender-based hierarchies and dualisms (see
Evans 1995 and Scott 1990). The equality/difference debate has also diverted
attention from larger social issues (Bacchi 1991) such as, in our context, the
social function of pregnancy, childbirth and parenting per se (see Fredman
1997) and the relationship between the public and the private (see below). The
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