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

  • Grace James (a1) and Emma Spruce (a1)

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.

Copyright

Corresponding author

Professor Grace James, School of Law, University of Reading, Foxhill House, Whiteknights Road, Reading RG6 7BA, UK. Email: c.g.james@reading.ac.uk. Emma Spruce, undergraduate student at the School of Law, University of Reading, 2010–2014.

Footnotes

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*

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.

Footnotes

References

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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).

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 in Age UK Later Life in the United Kingdom (London: Age UK, 2013) p 3. For a discussion, see Lloyd-Sherlock, P (ed) Living Longer: Ageing, Development and Social Protection (London: Zed Books, 2004).

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

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).

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

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). See also Pickard, LA 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 96123, cited in 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.

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.

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.

9. Carers UK, above n 6.

10. See also Borgsch-Supan, A, Hank, K and Jurges, HA 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).

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

12. Schroeder, B, Macdonald, J and Shamian, JOlder 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.

13. Above n 11.

14. See King, D and Pickard, LWhen 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.

15. Weakes, D, Wilkinson, H and Davidson, SFamilies, 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.

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: see McNeil and Hunter, above n 11, p 7.

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.

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

19. See eg Crompton, R Employment and the Family: The Reconfiguration of Work and Family Life in Contemporary Societies (Cambridge: Cambridge University Press, 2006); 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).

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

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 in McNeil and Hunter, above n 11, p 12.

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

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

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

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

27. Ibid.

28. Nussbaum, MCare, dependency and social justice’ in Lloyd-Sherlock, , above n 2, p 281.

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 ShortThe competitive demands of employment and informal caregiving to disabled elders’ (1990) 28(6) Med Care 524, cited in Yang, T and Gimm, GCaring 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: OECD Help Wanted? Providing and Paying for Long-Term Care (Paris: OECD, 2011), cited in 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 in 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).

34. See discussion below in section 3.

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

36. Ibid.

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

38. Ibid.

39. See above n 26, p 45.

40. See Lloyd-Sherlock, PGeneralisations, 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’: see World Bank Averting the Old Age Crisis (Oxford: Oxford University Press, 1994).

41. Above n 3, p 97.

42. Nussbaum, MCare, dependency and social justice’ in Lloyd-Sherlock, , above n 2, p 275.

43. Ibid, p 293.

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

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 the Mid Staffordshire NHS Trust Inquiry Report (Norwich: TSO, 2013), available at http://www.midstaffspublicinquiry.com/report (accessed 26/01/2015).

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, GForgotten children: work–family reconciliation in the Eu’ (2013) 34(3) J Soc Welfare & Fam L 363.

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.

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.

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

51. Taylor, CThe 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, see Lister, RRecognition 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.

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

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

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

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

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

57. Ibid, p 9.

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

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, EfA feminist public ethic of care meets the new communitarian family policy’ (2001) 111 Ethics 523.

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

62. Ibid, p 506.

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

64. See also Busby, NUnpaid 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’. See also Busby, N A Right to Care? Unpaid Work in European Employment Law (Oxford: Oxford University Press, 2011).

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, SLaw's response to the reconciliation of work and care: the Australian case’ in Busby and James, above n 17, p 86.

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. See also Hirst, M Health Inequalities and Informal Care: End of Project Report (York: Social Policy Research Unit, University of York, 2004).

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

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

72. den Dulk, LNetherlands 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).

73. Blum, S and Erler, DGermany country note’ in Moss, ibid.

74. Charlesworth, above n 67, p 96.

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

76. Merla, L and Devan, FBelgium country note’ in Moss, above n 72.

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, GThe 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.

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

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, ACare 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, see Horton, above n 48, p 137.

86. Above n 79.

87. Goodwin, R and Gibson, DThe 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).

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

* 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.

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