Women at work – positive obligations for positive results

Bob Hepple - 12th March 2014

The most significant change in recent decades influencing the position of women at work is the transformation of state-managed capitalism into a globally marketised, privatised, deregulated system. This is accompanied by an ideological change from the post-War spirit of social solidarity into a belief in individual choice, personal autonomy and meritocracy. Women are told that they will succeed through individual advancement and by being more career-oriented.

This change has resulted in a new gender gap. The gap in numbers between economically active men and women has been slowly decreasing. But the gap based on inequity in the quality of employment has grown. Women who enter the labour market are now generally highly educated but still have a difficult time finding work. When they do, they are generally segregated in poorly-paid, insecure, home-based or informal work. There remain in many countries legal restrictions on working in certain jobs, often based on religious or patriarchal assumptions. There are persistent social and cultural pressures on women to combine family responsibilities with paid employment or to remain at home as carers. Unpaid work is not valorised. The employment opportunities and earning potential of women continues to be well below that of men.

The roots of gender inequality lie in the socio-cultural traditions of countries, in the structures of employment, and in the way we measure economic value. What is needed is radical transformation that empowers women to the same degree as men, that restores a spirit of social solidarity. An increasing number of countries have adopted anti-discrimination legislation and policies; the Equal Rights Trust has been working in over 30 countries to promote and advise on such measures. However, giving legal rights to women to make individual complaints against discrimination is not enough, even when the law goes beyond outlawing direct discrimination to include indirect discrimination.

It has long been recognised that ‘positive action’ can bring about significant changes, including the eradication of practices that disadvantage women like word-of-mouth recruiting, and introducing policies that seek to increase the proportion of women by making the criteria for recruitment and promotion more objective and job-related, and preferential treatment of women where they are under-represented. The ILO Convention on Discrimination (Employment and Occupation) makes it clear that ‘special measures’- ‘designed to meet the particular requirements of persons who for reasons such as sex, age, disablement, family or social responsibilities or social or cultural status…shall not be deemed to be discrimination.’ (art 5).  This is an exception to the general negative principle of non-discrimination.

What is missing is a positive duty on employers to advance equality of opportunity. In some countries (e.g. Britain) legal duties have been imposed on public authorities to implement gender mainstreaming. As the European Commission said in 2008, this ‘means mobilising all general policies and measures specifically for achieving equality by actively and openly taking into account at the planning stage their effects on women and men and by assuming that a transformation of institutions and/ or organisations may be necessary.’ The economic crisis has made it extremely difficult to implement such policies. In Britain where, since 2006, there has been a general duty on public authorities to advance equality of opportunity, the duty is interpreted as mainly procedural – to have ‘due regard’ to the need to advance equal opportunities. Provided the authority follows the correct procedure, cuts in public expenditure which will have an adverse impact on women can still be implemented.

The ILO should examine how the equality conventions can better support transformative equality. The younger generation cannot afford to be – or do not wish to be – herded into traditional full-time permanent employment based on the model of a male breadwinner and unpaid dependent partner. ‘Familial economic units’ (with either shared or single-parenting) need to be provided with policy options that enable them to maximise their utility (for example properly paid parental leave, the valorisation of unpaid labour). However we are woefully short of data about the situation inside organisations: who works for what wage or salary.

This plea for an approach of transformative equality links with the question of the role of workers’ and employers’ representatives. Obviously supporting workers’ representatives by law or otherwise is important. The growing feminisation of trade unions also heralds a shift in direction. But trade unions and other workers’ representatives cannot do much if the channels open to them are being squeezed by government measures – for example in Britain prohibitive fees have been introduced for taking complaints of discrimination to employment tribunals. The Equality and Human Rights Commission, which is supposed to help victims of discrimination, has had its budget cut by 70% from £70 million in 2010 to just over £18 million in 2014 and its powers curtailed. The promise of greater gender equality through the actions of individuals is illusory.

The key to greater gender equality is through democratic participation in affirmative action schemes: to ensure a ‘fit’ or ‘proportionality’ between the aims of the scheme and the means used to achieve them, and to recognise that restorative justice is a process in which conflicting interests have to be reconciled. There must be dialogue and participation of those whose interests are affected in the process of change, and there should be mechanisms to ensure the accountability of those who represent these interests.

This is an edited version of a presentation given to the ILO Women at Work Centenary Initiative panel event to mark International Women’s Day on 7 March 2014. The full text will be published in Equal Rights Review vol.12 (March 2014).


Author profile

Sir Bob Hepple QC , FBA is the Chair of the Equal Rights Trust.


Sir Bob Hepple QC, ‘Women at work – positive obligations for positive results’ (OxHRH Blog, 12 March 2014) <http://humanrights.dev3.oneltd.eu/?p=4799> [date of access].


  1. Andrew Turek says:

    “preferential treatment of women where they are under-represented”

    a.k.a gender discrimination against men. The fact that women are more often the victims than men does not make it acceptable – ever.

    “‘special measures’- ‘designed to meet the particular requirements of persons who for reasons such as sex, age, disablement, family or social responsibilities or social or cultural status…shall not be deemed to be discrimination.’ (art 5).”

    If you are in a line of work which by its nature involves nights, weekends, or 24/7 work, and many lines of work do, you must take your equal share of the difficult shifts. Your private life is important to you, but so is your colleague’s private life to your colleague, who cannot be expected to work more nights and weekends so that you don’t have to.

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