Book Reviews

A RIGHT TO CARE? UNPAID CARE WORK IN EUROPEAN

EMPLOYMENT LAW by NICOLE BUSBY(Oxford: Oxford University Press, 2011, 209 pp., £72.00)

Unpaid carers are a fascinating group ± and one ripe for socio-legal analysis.Under the Poor Law they knew their place: family members obliged tomaintain their poor, old, blind, lame, and impotent relatives. Although theBeveridge reforms, in doing away with this legal liability, pointed towards afuture where social policy might domesticate the free market, this vision hasnot been realized. Liberalism has yielded to neoliberalism, and the rhetoricof globalism demands ever-greater sacrifices from worker and carer alike.

In the United Kingdom and a number of other states, the last 25 years hasseen an avalanche of legislation making specific mention of unpaid carers:legislation that seeks, in one way or another, to sustain their caring role withoutembarrassing the Treasury or upsetting the Confederation of British Industry. Ifit has done nothing more, this legislation has formally recognized the status of`unpaid carer' and the attendant proliferation of carers' organizations has led toan identification by carers that they are members of an oppressed class. Such acrystallization is a key factor in the development of a group consciousness,leading to demands for equal treatment and a status as `rights holders'.

Unpaid carers are predominantly women ± mothers, sisters, and daughters± and Busby explores this dimension (as virtually everything else in thisexcellent book) with a forensic and disarming thoroughness. In relation togender and unpaid work, she avoids the prescriptive classification of care asa `women's issue', and in relation to paid work she adopts Susan Okin'scritique of the neoliberal platonic ideal of the worker ± the autonomous `he'who it is assumed has ``̀ someone else'' at home to raise his children'.

The book's stated aim is to consider how paid work and unpaid care canbe reconciled by exploring the potential for the development of a `right tocare' in European employment law. Whilst this may not cause a stampede tothe book sales counter, it is a fascinating study, even for those who havehitherto resisted the charms of European employment law.

Employment arrangements in the EU have changed materially since itsformation, with a significant increase both in the numbers of women in workand the number of workers (predominantly women) in part-time work.Busby argues persuasively that these reconfigurations have taken placewithout any radical change to the conception of the `standard worker': thatinstead, self-standing rights have been bolted onto the regulatory framework`which seek to ensure its normalization'.

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Notwithstanding that the EU has matured ± adding a social dimension toits original economic raison d'eÃtre ± its dominant ethos remains that of themarket. This leads to the unpaid care/paid work conflict and theprioritization of commercial expediency over the non-commodifiabledemands of the care relationship. In Busby's view, there is nothingirreconcilable about this conflict, unless one has an oversimplifying andblinkered neoliberal worldview. Indeed, reconciling the conflict between thecompeting demands of paid work and unpaid care is of fundamentalimportance to our future social and economic well-being ± given that thecare relationship cannot be characterized as a minority activity.

One response to this discordance has been a process of de-familialization± the contraction of unpaid family care and the expansion of the paid-carersector ± via nurseries, day centres, domiciliary care agencies, after-schoolclubs, and so on: a new work sector itself dominated by women. Thecommodification of care implicit in this process may be seen (on one level)as a relatively elegant market-orientated solution: promoting economicgrowth and competitiveness and simultaneously shoring up the paradigm ofthe unencumbered autonomous worker. In Busby's view, however, such anaccommodation has, severe limitations in that:

the intrinsically intimate nature of the exchange that takes place between acarer and a recipient of care demonstrate the inalienability of certain aspects.This central component of the relationship is crucial to the well-being of bothparties and is, thus, non-commodifiable.

This assertion is the pivotal point in the book's analysis. If (as must be self-evident) `the full commodification of care is not possible', then what is to bedone, if we wish to change the palpably unfair consequences of the presentsystem?

Busby proposes a number of interconnected responses, all of which arepredicated on the incorporation (or `internalization') of social rights withinlabour law. A fundamental component of this `new dawn' of revivifiedsocial rights is the formulation of a `right to care'.

Whilst (as is acknowledged) the existence of such a right has been positedby others, it is nevertheless a radical and fascinating idea. Frustratingly,however, it is one that is too little explored in this excellent monograph. Thebulk of the analysis is devoted to where such a right should rest: where in thehierarchy of rights and where in the EU acquis. It is a bit like RobertGraves's `thing' that emerged `from the sea-caves of Criccieth' ± one neverquite gets to know what it is.

The `right to care', or perhaps the right to `give' care, shares many of theattributes of the right to a private and family life and by analogy, the right tomarry. It has, as Busby asserts, a moral and ethical dimension ± `based on theexpression of selfless love for its recipient'. It is a right that is little differentfrom the right to express one's self or the right to be free from exploitationand is, as the book makes abundantly clear, one that is in need of protection.

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To articulate the caring relationship in the language of human rights hasthe potential to be transformative ± to warp constitutional space and to effectprofound social change. The consequences of such a right gainingacceptance could be (for carers) as revolutionary as the recognition of the`social model' proved to be for disabled people.

Having assumed that such a right exists, the analysis moves to its potentialimpact on the EU's social and employment integration project, and to how theEU's institutions have demonstrated commitment and a coherent agenda inthis field. The European Court of Justice's ground-breaking 2008 judgment inColeman v. Attridge Law could have served as an excellent example of thedynamic. Prior to this judgment, the British government had resisted calls toinsert in disability discrimination law a prohibition of `associative'discrimination ± that is, adverse action against a person, not because theywere disabled, but because of their association with a disabled person. ThePrivate Members Bill that resulted in the Carers (Equal Opportunities) Act2004 proposed such an amendment to the Disability Discrimination Act 1995± but this clause was dropped in the face of government opposition:opposition founded on the spectre of the harm that such a change might haveon competitiveness. However, in Coleman, the ECJ ruled that associativediscrimination was contrary to a 2000 Equal Treatment Directive. Thecrystallization of a `carer's identity' and the consequent campaign by carersfor recognition had chalked up a major success through the medium of EUequality law. United Kingdom law has now been recast to accommodate thisdecision (in the Equality Act 2010), a change that has taken place without, itappears, irreparable damage being wrought to our economy.

Whilst Busby makes out her case ± that there is good reason to believethat the EU's competence, capability, and creativity will make a right to carea reality for paid workers ± the question then shifts to the non-worker carers:is the right to care only to be accommodated in employment law? Thebreadth of the critique has (as she acknowledges) the potential for a muchwider application, albeit that there is no equivalent evidence that thenecessary commitment exists to develop a radicalized social policy thatwould resolve this injustice.

This is a very welcome, important, and scholarly text. The credibility ofthe current political settlement is being undermined by its inability to addressthe social and economic aspirations of unpaid carers ± and labelling them`Big Society' or the `Third Way' does not seem to have been successful.They are a group beginning to self-identify and to use the same language ofsocial marginalization adopted by disabled people over 50 years ago. It is atheme that warrants many more socio-legal analyses of this quality.

LUKE CLEMENTSCardiff Law School, Cardiff University, Museum Avenue, Cardiff CF10 3AX,

Wales

clementslj@cf.ac.uk

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