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

Published online by Cambridge University Press:  02 January 2013

Emily Grabham
Emily Grabham
Affiliation:
Kent Law School, University of Kent, CT2 7NS, UK
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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.

Résumé

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.

Keywords

work/life balanceequalitylabourgenderflexibilityobjectsconciliation travail-vieégalitémain d'oeuvresexesouplesseobjets
Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 26 , Issue 3 , December 2011 , pp. 485 - 508
Copyright
Copyright © Canadian Law and Society Association 2011

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References

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

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

(i) the burden of additional costs,

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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.”

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40 Ibid.

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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.

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