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Doing Things with Time: Flexibility, Adaptability, and Elasticity in UK Equality Cases

  • Emily Grabham (a1)
Abstract

This paper focuses on the increasing significance of flexibility arguments to UK employment equality law. It makes use of the well-evidenced legal and governmental preoccupation with working time to investigate the production and circulation of concepts of flexibility through equality law case reports from the period 2001–2010. With case reports as my main focus, I trace how flexibility emerges through legal documental networks, so as to work out the contours of our collectively imagined “efficient” and “well-balanced” working practices. Human actors and significant non-human actors combine within and across case reports to produce and support a general set of understandings about legal flexibility. These understandings, as we have seen, suggest that flexibility is just as much a matter of organic or physical capabilities as it is of time. Concepts of elasticity, adaptability, and balance, therefore, force us to reconsider the meanings and motivations of governmental and oppositional constructions of work-life dilemmas.

Cet article s'intéresse à l'importance grandissante de la souplesse dans les lois britanniques sur l'égalité en matière d'emploi. En tenant compte de la préoccupation du temps de travail des systèmes légaux et gouvernementaux, nous examinons l'élaboration et la propagation des concepts de souplesse à l'aide de rapports d'enquête légaux en matière d'égalité durant les années 2001 à 2010. En portant une attention particulière sur des rapports d'enquête, nous soulignons la présence de la souplesse dans les réseaux de documents légaux, afin de circonscrire les notions collectives et imaginaires que sont les conditions de travail « efficaces » et « équilibées ». Dans ces documents ainsi qu'ailleurs, des facteurs importants, de nature humaine et non humaine, influencent notre compréhension de la souplesse légale. Comme nous l'avons vu, la souplesse semble résulter tant d'aptitudes organiques ou physiques que de la notion du temps. Par conséquent, les concepts d'élasticité, d'adaptabilité et d'équilibre viennent souligner les significations ainsi que les motivations présentes dans les constructions gouvernementales et contestataires des dilemmes travail-vie.

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1 Elson, D., “Male Bias in the Development Process: An Overview,” in Male Bias in the Development Process, ed. Elson, D. (Manchester: Manchester University Press, 1995): 25.

2 Riles, A., The Network Inside Out (Ann Arbor: University of Michigan Press, 2000): 18.

3 See Ashiagbor, D., The European Employment Strategy: Labour Market Regulation and New Governance (Oxford: Oxford University Press, 2005) and Collins, H., “The Right to Flexibility,” in Labour Law, Work, and Family, ed. Conaghan, J. and Rittich, K., 99124 (Oxford: Oxford University Press, 2005).

4 The reports analysed in this paper consist of Employment Tribunal, Employment Appeal Tribunal, Court of Appeal, and House of Lords (now Supreme Court) decisions issued between 2001 and 2010 on issues of equality-related flexibility arguments. Employment-related cases are heard first in a local Employment Tribunal and can be appealed (on a point of law only) to the Employment Appeal Tribunal, the Court of Appeal, and finally the Supreme Court. The case reports all deal with UK-level decisions. I specifically len out decisions from the European Court of Justice and the European Court of Human Rights for reasons of focusing the paper on UK-decided cases. The cases were located by searching on the widely used legal search engine Westlaw, using terms that have become prevalent within substantive equality law. For example, in order to yield cases on disability discrimination and scheduling, I searched, among other things, “‘flexible working’ AND ‘reasonable adjustment’”; for sex discrimination cases I searched, among others, “‘flexible working’ AND ‘indirect discrimination’”.

5 Meikle v. Nottinghamshire County Council (2005) ICR 1.

6 Commotion Ltd v. Rutty (2006) ICR 290.

7 New Southern Railway Ltd (formerly South Central Trains Ltd) v. Rodway (2005) ICR 1162.

8 See, respectively, Chief Constable of Avon & Somerset Constabulary v. Ms A. Chew (2001, unreported, case no: EAT/503/00) and Mrs Suzanne Finnigan v. Ministry of Defence Police (2005, unreported, case no: EATS/0019/05); Carshalton College v. Mrs H. Morris (2002, unreported, case no: EAT/0673/01); Sinclair Roche & Temperley & others v. Sian Heard and Sian Fellows (2004, unreported, case no: UKEAT/0738/03/MH); Mrs D. Fox v. Betesh Fox & Co Solicitors (2002, unreported, case no: EAT/0363/01); Hardy & Hansons pic v. Lax (2005) ICR 1565; British Airways pic v. Mrs Jessica Starmer (2005, unreported, case no: EAT/0306/05/SM); Herbert Smith & others v. Michelle Langton (2005, unreported, case no: UKEAT/0242/05/DM and UKEAT/0437/05/DM); Ms J. Mitchell v. David Evans Agricultural Ltd (2006, unreported, case no: UKEAT/0083/ 06/SM); Mrs H. Shaw v. CCL Ltd (2007, unreported, case no: UKEAT/0512/06/DM); Aviance UK Ltd v. Mrs M.L. Garcia-Bello (2007, unreported, case no: UKEAT/0044/07/ DA); Network Rail Infrastructures Ltd v Ms Patricia Gammie (2009, unreported, case no: UKEATS/0044/08/BI); Miss L.A. Rollinson v. P & B Baldwin t/a United Colours of Benetton (2005, unreported, case no: UKEAT/0873/04/CK); Ministry of Defence (Royal Navy) v. Mrs Adele MacMillan (2004, unreported, case no: EATS/0003/04). For analogous cases in Australian equality law, see Owens, R., “Engendering Flexibility in a World of Precarious Work,” in Precarious Work, Women, and the New Economy: The Challenge to Legal Norms, ed. Fudge, J. and Owens, R., 329–52 (Oxford: Hart Publishing, 2006).

9 See, e.g., Cloatre, E., “Trips and Pharmaceutical Patents in Djibouti: An ANT Analysis of Socio-Legal Objects,” Social & Legal Studies 17 (2008): 263–81.

10 Collins, , “The Right to Flexibility”: 105.

11 See Ashiagbor, D., “Promoting Precariousness? The Response of EU Employment Policies to Precarious Work,” in Precarious Work, Women, and the New Economy: The Challenge to Legal Norms, ed. Fudge, J. and Owens, R., 7797 (Oxford: Hart Publishing, 2006), and Labour Law, Work, and Family, ed. Conaghan, J. and Rittich, K. (Oxford: Oxford University Press, 2005).

12 See Anderson, L., “Sound Bite Legislation: The Employment Act 2002 and New Flexible Working ‘Rights’ for Parents,” Industrial Law Journal 32 (2003): 3742; James, G., “The Work and Families Act 2006: Legislation to Improve Choice and Flexibility?Industrial Law Journal 35 (2006): 272–78.

13 As introduced by the Employment Act 2002.

14 Section 80G Employment Rights Act 1996: Employer's duties in relation to application under section 80F are as follows:

1. An employer to whom an application under section 80F is made—

(a) shall deal with the application in accordance with regulations made by the Secretary of State, and

(b) shall only refuse the application because he considers that one or more of the following grounds applies—

(i) the burden of additional costs,

(ii) detrimental effect on ability to meet customer demand,

(iii) inability to re-organize work among existing staff,

(iv) inability to recruit additional staff,

(v) detrimental impact on quality,

(vi) detrimental impact on performance,

(vii) insufficiency of work during the periods the employee proposes to work,

(viii) planned structural changes, and

(ix) such other grounds as the Secretary of State may specify by regulations.

15 Fudge, and Owens, , Precarious Work, Women, and the New Economy: 19.

16 Conaghan, J., “Time to Dream? Flexibility, Families, and the Regulation of Working Time,” in Fudge, and Owens, , Precarious Work, Women, and the New Economy: 101–30.

18 L. Featherstone, Speech to the Fawcett Society, May 28, 2010, http://www.homeoffice.gov.uk/media-centre/speeches/L-Featherstone-Fawcett-Society?version=2.

19 See Anderson, “Sound Bite Legislation”; Conaghan, “Time to Dream.”

20 This is, in effect, an ‘indirect discrimination’ argument (see below). Furthermore, the Work and Families Act 2006 has, among other things, brought about increased provision of statutory maternity pay (currently 39 weeks) and increased maternity and paternity leave provision (52 weeks for mothers, one or two weeks for fathers/partners). The previous Labour government also introduced a right for fathers to take up to six months paternity leave once the mother has returned to work.

21 The Equality Act 2010 (EA) repealed much of the existing UK equalities legislation with the purported aim of simplifying and standardizing the law. According to section 19 (1) EA, indirect discrimination happens when a person applies to another person “a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's”. Sex is a protected characteristic under section 19(3) EA, and shift patterns or other work-related policies that indirectly impact women can be considered to be a “provision, criterion, or practice.” Employers can attempt to justify their action under section 19(2)(d) by arguing that the action is a “proportionate means of achieving a legitimate aim.”

22 See sections 20 and 21, and 39 of EA 2010. In short, the legal argument is that the employer has discriminated against the employee by failing to make a reasonable adjustment.

23 Again, this is an indirect discrimination argument. See sections 19 and 39 EA. Religion or belief (or lack of it) is a protected characteristic under section 19(3) EA.

24 Rittich, K., “Rights, Risk and Reward: Governance Norms in the International Order and the Problem of Precarious Work,” in Fudge, and Owens, , Precarious Work, 31.

25 See Jolly, D., “A Critical Evaluation of the Contradictions for Disabled Workers Arising from the Emergence of the Flexible Labour Market in Britain,” Disability & Society 15 (2002): 795810; Jolly, D., “The Government of Disability: Economics and Power in Welfare and Work,” Disability & Society 18 (2003): 509522; Wilton, R.D., “From Flexibility to Accommodation? Disabled People and the Reinvention of Paid Work,” Transactions of the Institute of British Geographers 29 (2004): 420432.

26 Conaghan, J., “Women, Work, and Family: A British Revolution?” in Labour Law in an Era of Globalization: Transformative Practices & Possibilities, ed. Conaghan, J., Fischi, R.M., and Klare, K., 5374 (Oxford: Oxford University Press, 2002); Rittich, K., “Feminization and Contingency: Regulating the Stakes of Work for Women,” in Labour Law in an Era of Globalization: 117136.

27 Jolly, ”The Government of Disability.”

28 Jolly, “A Critical Evaluation”; Conaghan, “Women, Work, and Family”; Fudge & Owens Precarious Work, Women, and the New Economy; Conaghan and Rittich, Labour Law, Work, and Family.

29 Lewis, J. and Plomien, A., “‘Flexicurity’ as a policy strategy: the implications for gender equality,” Economy & Society 28 (2009): 433459.

30 Conaghan and Rittich, Labour Law, Work, and Family; Rittich, “Feminization and Contingency.”

31 Schultz, V. and Hoffman, A., “The Need for a Reduced Workweek in the United States,” in Fudge, and Owen, , Precarious Work, Women, and the New Economy: 131.

32 Martin, E., Flexible Bodies: The Role of Immunity in American Culture from the Days of Polio to the Age of AIDS (Boston: Beacon Press, 1994).

33 Martin, , Flexible Bodies: 80.

34 Ibid., 79.

35 Valverde, M., “Authorizing the Production of Urban Moral Order: Appellate Courts and Their Knowledge Games,” Law & Society Review 39 (2005): 419455, 422.

36 Elson, , “Male Bias in the Development Process: An Overview,” 25. See also Bedford, K. and Jakobsen, J., Toward a Vision of Sexual and Economic Justice (New York: Barnard Center for Research on Women, 2008).

37 Fudge, J., “A New Gender Contract? Work/Life Balance and Working-Time Flexibility,” in Conaghan, and Rittich, , Labour Law, 261–87, 285.

38 McRuer, R., “As Good as it Gets: Queer Theory and Critical Disability,” GLQ: A Journal of Lesbian and Gay Studies 9 (2003): 79105. Thank you to Jessica Cadwallader for pointing me in the direction of McRuer's work.

39 Commotion Ltd v. Rutty (2006) ICR 290, 293. The case report here is the decision of the Employment Appeal Tribunal on appeal from the Employment Tribunal. The EAT upheld the Tribunal's original decision.

41 Unreported, case no: UKEATS/0044/08/BI.

42 Ibid., para 15. She won her claim for discrimination, but the case was referred by the EAT on appeal to a fresh tribunal.

43 Unreported, case no: EAT/0306/05/SM.

44 2005, unreported, case no: EATS/0019/05.

45 Meikle v. Nottinghamshire County Council (2005) ICR 1.

46 Ashiagbor, The European Employment Strategy.

47 The Treaty of Lisbon (2008/C115/01) is the most up-to-date version of the founding treaties of the European Union. It came into force on December 1, 2009. Further information can be found at http://europa.eu/lisbon_treaty/take/index_en.htm.

48 Amoore, L., “Risk, Reward, and Discipline at Work,” Economy & Society 33 (2004): 174–96.

49 Martin, , Flexible Bodies: 144.

50 Amoore, , “Risk, Reward, and Discipline at Work”: 185.

51 Amoore, , “Risk, Reward, and Discipline at Work”: 191.

52 Fredman, S., “Precarious Norms for Precarious Workers,” in Fudge, and Owens, , Precarious Work, Women, and the New Economy: 177.

53 Fredman, “Precarious Norms for Precarious Workers.”

54 Unreported. Case no: UKEAT/0223/07/CEA. Transcript obtained from Westlaw. The Employment Appeal Tribunal upheld the initial tribunal's rejection of his claim on the grounds that Mr McClintock had not identified his objections as being rooted in any religion or philosophy, he had not been subject to direct discrimination, and even if it was possible to make out an argument of indirect discrimination (which was doubtful), then such discrimination could be justified, and any possible violation of Article 9 would also be subject to a successful defence.

55 Unreported. Case no: UKEAT/0106/09/DA. Transcript obtained from Westlaw.

56 An appeal to the Employment Appeal Tribunal also failed on the basis that the employer treated Mr MacFarlane in the same way as it would have treated a non-Christian who was unwilling to work with same-sex couples, that Article 9 of the ECHR did not provide an unqualified right in relation to religious freedom, and that any indirect discrimination was justified. The EAT also dismissed an appeal on the issue of unfair dismissal.

57 (2009) EWCA Civ 1357.

58 It also found that Islington Borough Council had no alternative but to insist on Ms Ladele performing her duties as it had an obligation not to discriminate on the ground of sexual orientation in the way that it provided its services.

59 These legislators would have included members of the EU Parliament. The religion provisions within the Equality Act 2010 give effect to the United Kingdom's obligation to legislate in the area of religion and belief following the Framework Directive 2000, which was made possible by Article 13 of the EU Treaty.

Article 13 EU states:

Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The EU Framework Directive (2000/78/EC) established a general framework for equal treatment in employment and occupation on grounds of religion or belief, disability, age and sexual orientation. It required the UK to take steps to implement obligations relating to religion or belief by December 2, 2003. These measures now form part of the EA 2010.

60 Grosz, E., Time Travels: Feminism, Nature, Power (Durham, NC: Duke University Press, 2005).

61 Grosz, , Time Travels: Feminism, Nature, Power: 25.

62 Martin, , Flexible Bodies: 144.

63 Section 19 EA 2010.

64 Lister, R., “The Dilemmas of Pendulum Politics: Balancing Paid Work, Care, and Citizenship,” Economy & Society 31 (2002): 520–32.

65 Government Equalities Office, Working Towards Equality: A Framework for Action (2010), 24, http://www.equalities.gov.uk/pdf/MAINGEO_WorkingTogether_acc.pdf (last accessed April 9, 2010).

66 Equality and Human Rights Commission, Working Better: Meeting the Changing Needs of Families, Workers and Employers in the 21st Century, 6, http://www.equalityhumanrights.com/uploaded_files/working_better_final_pdf_250309.pdf.

67 Adkins, L., “From Retroactivation to Futurity: The End of the Sexual Contract?NORA - Nordic Journal of Feminist and Gender Research 16 (2008): 182201.

68 Adkins, , “From Retroactivation to Futurity,” 189–91.

69 Riles, , The Network Inside Out: 139.

70 Hunter, S., “Living Documents: A Feminist Psychosocial Approach to the Relational Politics of Policy Documentation,” Critical Social Policy 28 (2008): 506–28, 507. See also Bhandar, B., “Constituting Practices and Things: The Concept of the Network and Studies in Law, Gender and Sexuality,” Feminist Legal Studies 17 (2009): 325–32.

71 London Underground v. Edwards (1999) ICR 494.

72 Riles, , The Network Inside Out: 73.

73 Ibid., 78.

74 Ibid., 79.

75 See also Valverde, “Authorizing the Production of Urban Moral Order.”

* Many thanks to the editors and anonymous reviewers of the Canadian Journal of Law and Society for their extremely helpful comments. Thank you also to Kate Bedford, Jessica Cadwallader, Davina Cooper, Judy Fudge, and Lucy Williams for their comments and suggestions in relation to earlier drafts. An earlier draft of this article was presented to a symposium organized by the Connecticut Law Review: “Redefining Work: Exploring the Four Day Work Week,” October 30, 2009. Thank you to co-participants there for their feedback.

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