ABSTRACT
Chapter 3 demonstrates how the letter of the law, the standards it sets in terms of the family-friendly package of rights as a whole and the particular opportunities for redress it offers when pregnancy-parenting/workplace conflicts occur, is flawed in a number of ways. This chapter, drawing mainly on the tribunal study, now considers a further dimension of the legal regulation of pregnancy and parenting in the labour market: the effectiveness of law’s application at employment tribunals in England and Wales. This element is concerned with law’s enforcement, a hugely important aspect of any legal regulatory system, not least because it is the process through which legislation is interpreted and, in the higher courts, through which its scope is shaped. In relation to pregnancy and parenthood, academics have often scrutinised the application of legislation that promises to protect pregnant women and new mothers at work and to facilitate work/family reconciliation and found it to be less than adequate. For example, McGlynn (2001 and 2001a) has shown how certain judgments of the ECJ reproduce and legitimise traditional ideologies of the family and motherhood in cases such as Commission v Italy Case C-163/82 [1983] ECR 3273, Hofman v Barmer Ersatzkasse Case C-184/ 83 [1984] ECR 3047, Abdoulaye v Regie Nationale des Usine Renault Case C-218/98 [1999] IRLR 811 and Hill and Stapleton v Revenue Commissioners Case C-243/95 [1998] 3 CMLR 81 (for examples of other critiques of relevant legal application in reported cases, see Boch 1996; Caracciolo Di Torella and Masselot 2002; Caracciolo Di Torella and Masselot forthcoming; Conaghan 1998; Cox 1997; Wynn 1999). More recent decisions, such as Sara Kiiski v Tampereen Kaupunki Case C-116/06 1 [2008] CMLR 5, and Sabine Mayr v
Bäckerei und Konditorei Gerhard Flockner OHG ([2008] IRLR 378, ECJ), which extend the rights of women in legal terms but are based upon the constructed connection between women and pregnancy and childbirth, thus linking all aspects of childcare to females, also demonstrate the subtle inadequacy of current approaches to work/family cases at an EU level (see chapter 3).
