Human rights, gender solidarity and workplace culture: what remains to be done for women's rights at work?

The UN campaign and twitter movement, #heforshe, has made a significant impact on the public consciousness since its launch in 2014. The campaign invited the world to stand together on gender equality and take action in its pursuit. Although #heforshe is not without its critics, I would like to draw upon its themes of universal solidarity and gender equality as a human rights issue to answer the question of what remains to be done for women’s rights. Here, the focus will be on the world of work – highlighted by the #heforshe campaign as a key priority in the UK and around the world.

Substantial steps have been made through legislation and litigation in European human rights law on both of these themes. The EU has been instrumental, thus far, in striving for equal participation at work. For example, the Parental Leave Directive 2010 aims to ‘facilitate the reconciliation of parental and professional responsibilities for working parents’ by providing parental leave of up to four months to care for a child up until the age of eight. This has been supported by strong case law from the Courts of Justice of the European Union, emphasising particularly the promotion of equal sharing of parental responsibilities. In Roca Álvarez v Sesa Start España,[1] a national scheme provided the opportunity for new mothers to reduce their working hours during the first nine months after giving birth. This right was transferable to the father, but only if the mother was entitled to the leave by virtue of her status as an employee. As Mr Roca Alvarez’s partner was self-employed, he was not entitled to take the leave. The CJEU found this to be a breach of the Directive on Sex Discrimination: the scheme perpetuated traditional gender roles by making women the right-holder and through the assumption that men are subsidiary to women with regard to parenting responsibilities. It also deprived self-employed women of the opportunity to benefit from their partner’s support in care-giving activities, thereby limiting their ability to work.

The emphasis on sharing responsibility for caring for children and challenging stubborn, but unfortunately long-established, assumptions about the primary role of women in this arena is echoed in the European Court of Human Rights. In Markin v Russia,[2] a male member of the military challenged the unavailability of parental leave to servicemen. It was available to female military personnel and other citizens, but he was unable to take any parental leave. The Strasbourg Court found a breach Article 14’s guarantee of non-discrimination in the enjoyment of other ECHR rights (here Article 8’s respect for private and family life). The Court considered that male servicemen are in analogous position to other parents – parental leave rights enable a parent to stay at home and take a personal role in the care of their child – and therefore the inability of Mr Markin to take parental leave was an infringement of his right to equal treatment. The Russian government failed to satisfy the court that this infringement was justified. The Court expressed concern that the measure had ‘the effect of perpetuating gender stereotypes and [was] disadvantageous both to women’s careers and to men’s family life.’[3]

The continuing judicial insistence in Europe’s most senior courts upon protecting men’s and women’s rights to take an active role in raising children and to seek a balance between their professional and family life is very welcome. So too is the readiness to call into question damaging gender-based assumptions that underlie some legislative schemes that are, upon first reading, designed to boost the position of women in the workforce. Although significant legal strides have been made on gender equality in European human rights jurisprudence, in many areas, there is much that can still be done.

As Professor Sandra Fredman has argued, ‘the goal of equal participation of women in the workplace needs to be matched by equal participation of men in the home.’[4] Many legal changes could be suggested to implement this goal but an important step must be a change in the culture of the workplace. Men taking paternity or parental leave must be acknowledged as a positive and beneficial choice, rather than a sacrifice of a worker’s productive capacity for a period of time. Company policies on family leave should be readily accessible to all members of the workforce, to enable parents to plan ahead in light of their leave entitlements. Open discussion between managers, workers and company leadership on how firms can support all parents in the pursuit of a good work-life balance is imperative. All of these changes would enhance the position of women in the workplace, both directly through increased recognition of the value of caring work and indirectly by resulting in more effective sharing of responsibility for childcare.

#heforshe highlighted the necessity of universal participation in the ongoing campaign for equality and human rights. Framing the debate in terms of human rights emphasises its urgent and serious nature. In the UK, the ‘European project’ is rapidly losing influence after the Brexit vote and the authority of Strasbourg remains under threat. Both the EU and the institutions upholding the ECHR have been important forces for positive change in the pursuit of a gender-neutral work-life balance. Thus, progression down either path has the potential to do huge damage to the campaign for gender equality. In the UK, we must increase the effort to defend, retain and build upon the rights that parents have benefited from in the last decade and ensure that discussions of gender equality and women’s rights remain at the forefront of the political and societal discourse in times of great legal upheaval.