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Workers with elderly dependants: employment law's response to the latest care-giving conundrum

Published online by Cambridge University Press:  02 January 2018

Grace James  and
Emma Spruce
Grace James*
Affiliation:
University of Reading
Emma Spruce*
Affiliation:
University of Reading
*
Professor Grace James, School of Law, University of Reading, Foxhill House, Whiteknights Road, Reading RG6 7BA, UK. Email: [email protected]. Emma Spruce, undergraduate student at the School of Law, University of Reading, 2010–2014.
Professor Grace James, School of Law, University of Reading, Foxhill House, Whiteknights Road, Reading RG6 7BA, UK. Email: [email protected]. Emma Spruce, undergraduate student at the School of Law, University of Reading, 2010–2014.
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Abstract

This paper considers how employment laws are being used in response to what we have termed ‘the eldercare–workplace conundrum’. It is well known that people are now living longer but health is still failing in a significant percentage of older people, meaning that many adults require care for longer, albeit to varying degrees and for varying amounts of time. Many of these individuals will receive care from relatives or close friends who are participating in the labour market: this is increasingly likely as adults are expected or want to remain in paid work for longer, often into their sixties and seventies. The requirements of elderly dependants can cause these workers huge difficulties and dilemmas as they attempt, across time, to accommodate the particular needs of the person for whom they wish to provide care, often a loved one, and meet the particular demands of their employment relationship. In this paper, we consider why this is an area of social policy that warrants effective legal engagement and consider, drawing on various examples of legal responses in other countries that face similar conundrums, what might improve legal engagement in this area.

Type
Research Article
Information
Legal Studies , Volume 35 , Issue 3 , September 2015 , pp. 463 - 479
Copyright
Copyright © Society of Legal Scholars 2015 

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Footnotes

*

Emma Spruce, Undergraduate student at the School of Law, University of Reading (2010–2014), who contributed to this piece as part of the University Research Opportunities Programme. We thank Eugenia Caracciolo di Torella, Rachel Horton and the anonymous reviewers for their useful comments.

References

1. ONS Statistical Bulletin: Historical and Projected Mortality Data from Period and Cohort Life Tables, 2012 based, UK, 1981–2062 (2013) available at http://www.ons.gov.uk/ons/dcp171778_345078.pdf (accessed 2 September 2014). See also Age Concern Older People in the UK (UK: Age Concern, 2008).Google Scholar

2. See http://www.who.int/gho/countries/en/ (accessed 2 September 2014). According to one survey, the UK's population is ageing more slowly than other comparable countries (see ONS Population Trends 42 (London: ONS, December 2010), cited inGoogle Scholar Age UK Later Life in the United Kingdom (London: Age UK, 2013) p 3. For a discussion,Google Scholar see Lloyd-Sherlock, P (ed) Living Longer: Ageing, Development and Social Protection (London: Zed Books, 2004).CrossRefGoogle Scholar

3. Herring, J Older People in Law and Society (Oxford: Oxford University Press, 2009) p 1.CrossRefGoogle Scholar

4. Alzheimer's Disease International The Global Impact of Dementia 2013–2050 (London: ADI, 2013), available at http://www.alz.co.uk/research/GlobalImpactDementia2013.pdf (accessed 8 January 2014).Google Scholar

5. Butler, R The Longevity Revolution: The Benefits and Challenges of Living a Long Life (New York: Public Affairs, 2008).Google Scholar

6. Carers UK Facts about Carers 2012 (London: Carers UK, 2012), available at http://www.carersuk.org/media/k2/attachments/Facts_about_carers_Dec_2012.pdf (accessed 8 January 2014).Google Scholar See also Pickard, L ‘A growing care gap? the supply of unpaid care for older people by their adult children in England to 2032’ (2013) 35(1) Ageing & Soc'y 96–123, cited inCrossRefGoogle Scholar McNeil, C and Hunter, J The Generation Strain: Collective Solutions to Care in An Ageing Society (London: Institute for Public Policy Research, 2014) p 7.Google Scholar

7. See eg MetLife Mature Market Institute The MetLife Study of Caregiving Costs to Working Caregivers: Double Jeopardy for Baby Boomers Caring for Their Parents (US: MetLife, 2011) available at https://www.metlife.com/mmi/research/caregiving-cost-working-caregivers.html#key%20findings (accessed 2 September 2014), which estimates that there are over 9.7 million parental carers over the age of 50 in the USA: a conservative assessment, given that this figure does not include younger carers or those caring for other elderly dependants.Google Scholar

8. Canadian Caregiver Coalition Respite: A Challenge for Caregivers, Service Providers and Policy Makers (2001) p 5, cited in Duxbury, L, Higgins, C and Smart, R Elder Care and the Impact of Caregiver Strain on the Health of Employed Caregivers (Ontario: IOS Press, 2010) p 30.Google Scholar

9. Carers UK, above n 6.

10. See also Borgsch-Supan, A, Hank, K and Jurges, H ‘A new comprehensive and international view on ageing: introducing the “Survey of health, ageing and retirement in Europe” ’ (2008) in Kemp, Pa, Van den Bosch, K and Smith, L (eds) Social Protection in an Ageing World (Antwerp: Intersentia, 2008).Google Scholar

11. See discussion in McNeil and Hunter, above n 6, p 10.

12. Schroeder, B, Macdonald, J and Shamian, J ‘Older workers with caregiving responsibilities: a Canadian perspective on corporate caring’ in Barratt, J Keeping Older Workers in the Labour Force and Caring for a Family Member: Can We Be in Two Places At Once? (Toronto: International Federation on Ageing, 2011) p 29.Google Scholar

13. Above n 11.

14. See King, D and Pickard, L ‘When is carer's employment at risk? Longitudinal analysis of unpaid care and employment in midlife in England’ (2013) 21(3) Health & Soc Care Commun 303.CrossRefGoogle ScholarPubMed

15. Weakes, D, Wilkinson, H and Davidson, S ‘Families, relationships and the impact of dementia – insights into the “ties that bind” ’ in McKie, L and Cunningham-Burley, S (eds) Families in Society: Boundaries and Relationships (Bristol: Policy Press, 2005) p 149.Google Scholar

16. See Herring, above n 3. Indeed, it has been suggested that focus on four ‘pillars’ – family, community, market and state – are important to bring about lasting social change in this area:Google Scholar see McNeil and Hunter, above n 11, p 7.Google Scholar

17. Busby, N and James, G (eds) Families, Caregiving and Paid Work; Challenging Labour Law in the 21st Century (Cheltenham: Edward Elgar, 2011) p 2.Google Scholar

18. For an overview, see Herring, J Carers and the Law (Oxford: Hart Publishing, 2013).Google Scholar

19. See eg Crompton, R Employment and the Family: The Reconfiguration of Work and Family Life in Contemporary Societies (Cambridge: Cambridge University Press, 2006);CrossRefGoogle Scholar Fineman, M The Autonomy Myth: A Theory of Dependency (New York: New Press, 2004); J Lewis Work–Family Balance, Gender and Policy (Cheltenham: Edward Elgar, 2009).Google Scholar

20. James, G The Legal Regulation of Pregnancy and Parenting in the Labour Market (London: Routledge-Cavendish, 2009) p 15.Google Scholar

21. Eg in the UK, 58% of carers of elderly dependants are female and 42% are male: see NHS Information Centre for Health and Social Care Survey of Carers in Households 2009/10 (2010), cited in Carers UK, above n 6, p 2.

22. Carmichael, F et al ‘Work–life imbalance: informal care and paid employment in the Uk’ (2008) 14 Feminist Econ 3, cited inCrossRefGoogle Scholar McNeil and Hunter, above n 11, p 12.

23. Carers UK It Could Be You (London: Carers UK, 2000).Google Scholar See also Pickard, above n 6, p 12.Google Scholar

24. Agree, E, Bissett, B and Rendall, M ‘Simultaneous care for parents and care for children amongst midlife British women and men’ (2003) 112 Population Trends 29.Google Scholar

25. Ibid. See also Grundy, E and Henretta, Jc ‘Between elderly parents and adult children: a new look at the intergenerational care provided by the “sandwich generation” ’ (2006) 26(5) Ageing & Soc'y 707.CrossRefGoogle Scholar

26. Carers UK Carers and Family Finances Inquiry (London: Carers UK, 2013) p 57.Google Scholar

27. Ibid.

28. Nussbaum, M ‘Care, dependency and social justice’ in Lloyd-Sherlock, , above n 2, p 281.Google Scholar

29. See eg Barratt, above n 12.

30. See, for example, a 1990s study in the USA, which found that 29% of potential caregivers who decided not to choose institutional care for their parents left the labour market or reduced their hours at work: RI Stone and PF Short ‘The competitive demands of employment and informal caregiving to disabled elders’ (1990) 28(6) Med Care 524, cited inGoogle Scholar Yang, T and Gimm, G ‘Caring for elder parents: a comparative evaluation of family leave laws’ (2013) 41 J Law Med & Ethics 501 at 501. See also a UK study suggesting that more carers will stop working altogether than reduce their hours:CrossRefGoogle ScholarPubMed OECD Help Wanted? Providing and Paying for Long-Term Care (Paris: OECD, 2011), cited inGoogle Scholar Carers UK, above n 6, p 8.

31. Pickard, L Public Expenditure Costs of Carers Leaving Employment (London: LSE Health and Social Care, 2012), cited inGoogle Scholar Age UK, above n 2, p 13.

32. Ibid.

33. See Audit Commission Social Care for Older People: Using Data from VFM Profiles, July 2013 (London: Audit Commission, 2013).Google Scholar

34. See discussion below in section 3.

35. Carers UK State of Carers Survey (London: Carers UK, 2013).Google Scholar

36. Ibid.

37. Department of Work and Pensions Households below Average Income 2010/11 (London: DWP, 2013), cited inGoogle Scholar Age UK, above n 2, p 16.

38. Ibid.

39. See above n 26, p 45.

40. See Lloyd-Sherlock, P ‘Generalisations, myths and stereotypes’ in Lloyd-Sherlock, , above n 2, p 5. Here, Lloyd-Sherlock provides evidence of this paradigm, quoting the World Bank's observation that ‘the world is approaching an old age crisis … the proportion of the population that is old is expanding rapidly, swelling the potential economic burden on the young’:Google Scholar see World Bank Averting the Old Age Crisis (Oxford: Oxford University Press, 1994).Google Scholar

41. Above n 3, p 97.

42. Nussbaum, M ‘Care, dependency and social justice’ in Lloyd-Sherlock, , above n 2, p 275.Google Scholar

43. Ibid, p 293.

44. For a discussion of dignity in the context of discrimination rights, see Moon, G and Allen, R ‘Dignity discourse in discrimination law: a better route to equality?’ (2006) 6 Eur Hum Rts L Rev 695.Google Scholar

45. See eg Department of Health Transforming Care: A National Response to the Winterbourne View Hospital. Department of Health Review: Final Report (London: Department of Health, 2012), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/213215/final-report.pdf (accessed 26/01/2015) and theGoogle Scholar Mid Staffordshire NHS Trust Inquiry Report (Norwich: TSO, 2013), available at http://www.midstaffspublicinquiry.com/report (accessed 26/01/2015).Google Scholar

46. See eg Lord Sainsbury of Turville, Parliamentary Undersecretary of State, Department of Trade and Industry, introducing the Work and Families Bill to the House of Lords for its second reading: Hansard HL Deb, 14 February 2006, col 1090, cited in James, above n 20, p 37. See also arguments for how children's welfare could be developed further in this regard in James, G ‘Forgotten children: work–family reconciliation in the Eu’ (2013) 34(3) J Soc Welfare & Fam L 363.CrossRefGoogle Scholar

47. See discussion in O'Brooks, R ‘ “the refurbishing”: reflections upon law and justice among the stages of life’ (2006–7) 54 Buff L Rev 619.Google Scholar

48. See Maduro's argument in Coleman v Attridge Law (Case C-303/06) [2008] IRLR 722: discussed in R Horton ‘Care-giving and reasonable adjustment in the UK’ in Busby and James, above n 17, p 137.

49. See Pickard, L et al ‘Mapping the future of family care: receipt of informal care by older people with disabilities in England to 2032’ (2012) 111 Soc Pol'y & Soc'y 533.CrossRefGoogle Scholar

50. Butler, R Why Survive? Being Old in America (New York: Harper and Row, 1975) p 35.Google Scholar

51. Taylor, C ‘The politics of recognition’ in Gutmann, A (ed) Multiculturalism and the Politics of Recognition (Princeton, NJ: Princeton University Press, 1992) p 25. For a useful discussion of Taylor's theory and interpretations of it,Google Scholar see Lister, R ‘Recognition and voice: the challenge for social justice’ in Craig, G, Burchardt, T and Gordon, D (eds) Social Justice and Public Policy: Seeking Fairness in Diverse Societies (Bristol: Policy Press, 2008) p 110.Google Scholar

52. Sayer, A The Moral Significance of Class (Cambridge: Cambridge University Press, 2005) p 54.CrossRefGoogle Scholar

53. Ray, S and Sharp, E Ageism (London: Age Concern, 2006) p 13.Google Scholar

54. The words of Hugo Sinzheimer as cited by Hepple, B ‘The future of labour law’ (1995) 21 Indust L J 303 at p 322; and inCrossRefGoogle Scholar Hepple, B ‘Employment law under the coalition government’ (2013) 42(3) Indust L J 203 at 223.CrossRefGoogle Scholar

55. See Smart, C Feminism and the Power of Law (London: Routledge, 1989).Google Scholar

56. See Herring, above n 3, p 3, and Chapter 2.

57. Ibid, p 9.

58. See James, G ‘The Work and Families Act 2006: legislation to improve choice and flexibility?’ (2006) 35(3) Indust L J 272.CrossRefGoogle Scholar

59. Ibid, p 2. In the labour market context – this ‘autonomous and unattached adult’ is often a male, ‘unencumbered’ worker – for an outline, see James, above n 20, pp 17–18.

60. See eg Fineman's view of care as a ‘social debt’: Fineman, above n 19. See also Kittay's arguments that it ought to be paid for by taxpayers: Kittay, Ef ‘A feminist public ethic of care meets the new communitarian family policy’ (2001) 111 Ethics 523.CrossRefGoogle Scholar

61. Yang, T and Gimm, G ‘Caring for elder parents: a comparative evaluation of family leave laws’ in (2013) 41 J L Med & Ethics 501 at 507.CrossRefGoogle ScholarPubMed

62. Ibid, p 506.

63. Sloan, B Informal Carers and Private Law (Oxford: Hart Publishing, 2013).Google Scholar

64. See also Busby, N ‘Unpaid care-giving and paid work within a rights framework’ in Busby and James, above n 17, p 190, who presents a convincing argument that ‘more fundamental concerns of an ethical nature should underpin the prioritisation of competing claims for public resources’.Google Scholar See also Busby, N A Right to Care? Unpaid Work in European Employment Law (Oxford: Oxford University Press, 2011).CrossRefGoogle Scholar

65. Above n 63, p 7.

66. Employment Rights Act 1996, s 57.

67. This is also available to casual workers, although it is paid in the case of the former but not the latter. See Charlesworth, S ‘Law's response to the reconciliation of work and care: the Australian case’ in Busby and James, above n 17, p 86.Google Scholar

68. Which in Australia, can be accrued over the years and he or she can ‘cash out’, so long as the employer allows for this in writing and he or she retains at least 15 days of the untaken leave. The provisions, in this circumstance, financially reward workers who have not taken leave and, one might argue, penalises those who have had to undertake care work and cannot benefit from this extra pay.

69. See Carers UK The Case for Care Leave: Family, Work and the Ageing Population (London: Carers UK, 2013) p 8.Google Scholar See also Hirst, M Health Inequalities and Informal Care: End of Project Report (York: Social Policy Research Unit, University of York, 2004).Google Scholar

70. See Waldfogel, J ‘Family and medical leave: evidence from the 2000 surveys’ (2001) 124(9) Monthly Lab Rev 17.Google Scholar

71. See Yang and Gimm, above n 61, p 504.

72. den Dulk, L ‘Netherlands country note’ in Moss, P (ed) (2013) International Review of Leave Policies and Research 2013, available at http://www.leavenetwork.org/fileadmin/Leavenetwork/Annual_reviews/2013_complete.6june.pdf (accessed 26/01/2015).Google Scholar

73. Blum, S and Erler, D ‘Germany country note’ in Moss, ibid.Google Scholar

74. Charlesworth, above n 67, p 96.

75. Qua v John Ford Morrison Solicitors [2003] ICR 482 EAT.

76. Merla, L and Devan, F ‘Belgium country note’ in Moss, above n 72.Google Scholar

77. FMLA Surveys, available at http://www.dol.gov/whd/fmla/survey/ (accessed 26/01/2015), cited in Yang and Gimm, above n 61, p 503.

78. See Yang and Gimm, above n 61, p 504.

79. Moss, above n 72.

80. Longer if the child is chronically ill or disabled: ibid, p 244.

81. See Donnelly, N, Procter-Thomson, S and Plimmer, G ‘The role of “voice” in matters of “choice”: flexible work outcomes for women in the New Zealand public services’ (2012) 54(2) J Indust Relat 182.CrossRefGoogle Scholar

82. See Charlesworth, S and Campbell, I ‘Right to request regulation: two new Australian models’ (2008) 21(2) Austl J Lab L 1.Google Scholar

83. Charlesworth, above n 67, p 98.

84. Legal action may be brought by a casual worker who feels that his or her carer responsibilities have not been accommodated, but it seems, following cases on the issue, that a lower expectation exists in relation to what is expected of an employer where casual workers are concerned. See eg Richold v Department of Justice (Corrections Victoria) [2010] VCAT 433, discussed in S Charlesworth, above n 67, p 99.

85. In other words, beyond direct and indirect discrimination: Chapman, A ‘Care responsibilities and discrimination in Victoria: the Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic)’ (2008) 21(2) Austl J Lab L 200 at 207. For a discussion of how the duty to provide reasonable adjustments should be extended in the UK to those who care,Google Scholar see Horton, above n 48, p 137.

86. Above n 79.

87. Goodwin, R and Gibson, D ‘The decasualisation of elder care’ in Kittay, Ef and Feder, E (eds) The Subject of Care: Feminist Perspectives on Dependency (Totowa, NJ: Rowan and Littlefield, 2003).Google Scholar

88. As Horton point out, effective working arrangements and legal rights for working carers are of limited use if they are not supported by the care system – eg by adequate day care provisions – see Horton, above n 48, p 139.

89. Busby, N ‘Unpaid care-giving and paid work within a rights framework’ in Busby and James, above n 17, p 203.Google Scholar See also Busby, N A Right to Care? Unpaid Work in European Employment Law (Oxford: Oxford University Press, 2011).CrossRefGoogle Scholar