Abstract
The right to request flexible working has been introduced into the UK employment laws against a background of post-fordist work practices, which already allow for employer rather than employee flexibility. This paper posits the idea that for the individual employee to benefit from these new rights what is required is the situation of dialogues within the workplace that take place in an ethical frame that recognises the employee as an individual.
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Notes
Employment Rights Act 1996 s80F as inserted by the Employment Act 2002, s. 47. A more detailed legislative history can be found in L. Anderson, ‘Sound Bite Legislation: The Employment Act 2002 and New Flexible Working Rights for Parents’, Industrial Law Journal 32 (2003), 37.
Employment Rights Act 1996, s. 57A and s. 57B as inserted by the Employment Relations Act 1999, sch 4 (II) para 1.
Much more comprehensive pictures of labour law regulation are given by J. Conaghan, ‘Women, Work, and Family: A British Revolution?’ and H. Collins, ‘Is There a Third Way in Labour Law’, in J. Conaghan et al., eds, Labour Law in an Era of Globalization (Oxford: Oxford University Press, 2002), 53 and 449 respectively.
S. Lash and J. Urry, The End of Organised Capitalism (Cambridge: Polity, 1987), 280; and L. Dickens, ‘Individual Statutory Employment Rights since 1997: constrained expansion’, Employee Relations 24 (2002), at 621, 624.
A. Pollert, ‘The Unorganised Worker: the Decline in Collectivism and New Hurdles to Individual Employment Rights’, Industrial Law Journal 34 (2005), 217.
B. Hepple and G. Morris, ‘The Employment Act 2002 and the Crisis of Individual Employment Rights’, Industrial Law Journal 31 (2002), 245.
A not dissimilar pattern has emerged in the US, see K. Stone, ‘The Legacy of Industrial Pluralism: The Tension Between Individual Employment Rights and the New Deal Collective Bargaining System’, University of Chicago Law Review 59 (1992), 575.
Department of Trade and Industry, Routes to Resolution (London: HMSO, 2001).
J. Hyman and J. Summers, ‘Lacking Balance?’, Personnel Review 33 (2004), 422.
R. Hyman, ‘The Europeanization-or the Erosion-of Industrial Relations?’, Industrial Law Journal 32 (2001), 280.
L. Dickens, ‘Beyond the Business Case: a Three Pronged Approach to Equality Action’, Human Resource Management Journal 9 (1999), 9.
H. Katz, ‘The Decentralization of Collective Bargaining: A Literature Review and Comparative Analysis’, Industrial and Labor Relations Review 3 (1993), 47.
M. Regini, ‘Human Resource Management and Industrial Relations in European Countries’, in J Niland et al., eds, The Future of Industrial Relations in Europe (London: Sage, 1994).
A. Munro, ‘A Feminist Trade Union Agenda? The Continued Significance of Class, Gender and Race’, Gender Work and Organization 8 (2001), 454.
R. Hyman, ‘An Emerging Agenda for Trade Unions?’, in R Munck, ed. Labour and Globalisation (Liverpool: Liverpool University Press, 2004), 19 at 20. There is extent to which representation for these sorts of workers is an emerging agenda for trade unions: see B. Abbott and E. Heery, ‘Representing the Insecure Workforce’, in E. Heery and J. Salmon, eds, The Insecure Workforce (London: Routledge, 2000), 155.
K. Stone, ‘The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law’, UCLA Law Review 48 (2001), 521 at 573.
It is possible for those on both sides of the globalization debate to see that the present position of multinationals offers a unique opportunity for them to become public actors in the sense of exercising responsibility, see D. Rondinelli, ‘Transnational Corporations: International Citizens or New Sovereigns’, Business and Society Review 107 (2002), 391.
The whole area of employee participation is one which has been well traversed by industrial relations and labour law scholars. For a comprehensive review of the various different types of participation and a detailed bibliography see J. Hyman and B. Mason, Managing Employee Involvement and Participation (London: Sage, 1995).
Report of the Committee of Inquiry on Industrial Democracy (1977) Cmnd 6706.
Industrial Democracy 1978 Cmnd 7231.
A similar permissive rather mandatory approach to the consideration of interests wider than the traditional shareholder wealth stake in the company is employed in some US states. See E. Orts, ‘Beyond Shareholders: Interpreting Corporate Constituency Statutes’, George Washington Law Review 61 (1992), 26.
H. Ramsay, ‘Cycles of Control: Worker Participation in Sociological and Historical Perspective’, Sociology 11 (1977), 481.
For this view see for example H. Braverman, Labour and Monopoly Capital (New York Monthly Review Press, 1974).
H. Taylor, ‘Insights into Participation from Critical Management and Labour Process Perspectives’, in B. Cooke and U. Kothari, eds, Participation: the New Tyranny (London: Zed, 2002), 122 at 136
Directive 94/45/EC of September 22nd 1994.
Article 2(f).
Directive 2002/14/EC of the European Parliament and the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community. It is clear from Article 4 of the Directive (the so-called practical arrangements) that a structure akin to a Works Council maybe necessary if the undertaking has no other appropriate mechanisms in place to disseminate information.
K. Sisson and P. Marginson, The Impact of Economic and Monetary Union on Industrial Relations: A Sector and Company View (Luxembourg: Office of Official Publications of the European Community, 2000).
P. Blyton and P. Turnbull, The Dynamics of Employee Relations (Basingstoke: Macmillan, 1998, 2nd edn).
G. Gall and S. McKay, ‘Trade Union Derecognition in Britain, 1988–1994’, British Journal of Industrial Relations 32 (1994), 433.
J. Wills, ‘Being Told and Answering Back’, in J. Bryson et al., eds, Knowledge, Space, Economy (London: Routledge, 2000), 261.
For empirical information on this point see C. Lloyd, ‘What do Employee Councils do? The Impact of Non-union Forms of Representation on Trade Union Organisation’, Industrial Relations Journal 32 (2001), 313.
H. Arthurs, ‘Reinventing Labor Law for the Global Economy’, Berkeley Journal of Employment & Labour Law 22 (2001), 271 at 284.
J. Lewis, ‘The Decline of the Male Breadwinner: Implications for Work and Care’, Social Politics 8 (2001), 152.
Figures taken from those made available by the UK Statistical Office, www.statisticaloffice.org.
U. Beck, The Brave New World of Work (Cambridge: Polity Press, 2000). It is I think perfectly possible to draw this idea from Beck and take no further position on whether Beck offers an accurate reading or not of contemporary society at large. On this point see, for example, R. Dingwall, ‘“Risk Society”: The Cult of Theory and the Millennium’, Social Policy and Administration 33/4 (1999), 474.
‘The proportion of life opportunities which are fundamentally closed to decision-making is decreasing and the proportion of biography which is open and must be constructed biographically is increasing’, per U. Beck, Risk Society (London: Sage, 1992), 135.
Z. Bauman, Society Under Siege (Cambridge: Polity Press, 2002) 148–149. See also R. Taylor, ‘Britain’s World of Work – Myths and Realities’ where this proposition is rationalised into an issue of declining ‘personal commitment to the work place’, ESRC Future of Work Programme Seminar Series www.leeds.ac.uk/esrcfutureofwork/downloads/fow_publication3.pdf at 11–12; and S. Cartwright and N. Holmes, ‘The Meaning of Work: The Challenge of Regaining Employee Engagement and Reducing Cynicism’, Human Resource Management Review 16 (2006), 199.
S. Bullock, Women and Work (London: Zed Books, 1994), and H Bradley, et al. Myths At Work (Cambridge: Polity Press, 2000), 51f.
Taylor, supra, n. 38 at 7.
A. Pollert, ‘The Orthodoxy of Flexibility’, in A. Pollert, ed., Farewell to Flexibility (Oxford: Blackwell, 1991), 4.
K. Doogan, ‘Insecurity and Long-term Employment’, Work Employment and Society 15 (2001), 419 at 422.
There is now a large literature that deals with the negative consequences of family/work conflict; poor physical health: adverse behavioural issues: job dissatisfaction and lower organizational commitment. For a comprehensive review see M. Marchese et al., ‘Work-family Conflict: A virtue ethic analysis’, Journal of Business Ethics 40 (2002), 145; and R. Rotondo, et al., ‘Coping with Multiple Dimensions of Work-Family Conflict’, Personnel Review 32 (2002), 275.
Beck, supra, n. 36, at 64.
J. Tomaney, et al., ‘Plant Closure and the Local Economy. The Case of Swan Hunter on Tyneside’, Regional Studies 33 (1999), 401.
According to the National Study of Changing Workforce 1997 (familiesandwork.org) some 13% of workers, 83% of whom were still in full time employment took second jobs ‘to earn extra money’. The same survey also reported that while the length of the full-time working week had apparently decreased the actual working week among employees working 20 or more hours had increased from 47.1 hours each week spent on all paid and unpaid hours at work in 1993 to 49.9 in 1997.
H. Beynon, ‘The Changing Practices of Work’, in R. Brown, ed., The Changing Shape of Work (Basingstoke: Macmillan, 1997), 20.
Between 1988 and 1998 in the UK male part-time employment increased by 128%. These part-time workers earn less than full time employers. (Source Labour Research Department 1999). According to S. Dex and A. McCulloch, Flexible Employment (Basingstoke: Macmillan, 1997), 85% of UK workplaces are thought to have part-time employees.
S. Vallas, ‘Rethinking Post-Fordism: The Meaning of Workplace Flexibility’, Sociological Theory 1 (1991), 68.
R. Crompton, ‘Employment, Flexible Working and the Family’, British Journal of Sociology 53 (2002), 537 at 541f.
For a discussion of the different discourses that surround flexibility, see A. Sheridan and L. Conway, ‘Workplace Flexibility: Reconciling the Needs of Employers and Employees’, Women in Management Review 16 (2001), 5.
In for example the field of retirement provision, see M. Hyde and J. Dixon, ‘Working and Saving for Retirement: New Labour’s Reform of Company Pensions’, Critical Social Policy 24/2 (2004), 270.
A. Finlayson, Making Sense of New Labour (London: Lawrence and Wishart, 2003),189.
A. Giddens, Beyond Right and Left (Cambridge: Polity Press, 1995), 82; see also U. Beck, ‘The Reinvention of Politics: Towards a Theory of Reflexive Modernization’, in Beck, Giddens and Lash, eds., Reflexive Modernization: Politics, Tradition and Aesthetics in the Modern Social Order (Cambridge: Polity Press, 1994), 14.
S. Bastow and J. Martin, Third Way Discourse (Edinburgh: Edinburgh University Press, 2003), 93f.
J. Saramago, The Cave (London: Harvill Press, 2002), 98.
See in particular Beck supra, n. 35 at 53–54.
U. Beck, Democracy Without Enemies (Cambridge: Polity Press, 1998). For a critical reflection on Beck’s contribution to debates around work see C. Ekinsmyth, ‘Professional Workers in a Risk Society’, Transactions of the Institute of British Geographers 24/3 (1999), 353.
One is reminded of Scott Lash’s observation that it is hard to construct freely one’s life biography if one is a single mother in an urban ghetto: see S. Lash, ‘Reflexivity and its Doubles: Structures, Aesthetics, Community’, in Beck, et al., eds, Reflexive Modernization: Politics, Tradition and Aesthetics in the Modern Social Order (Cambridge: Polity Press, 1994), 110.
www.redproductioncompany.com.
N. Rose, Powers of Freedom (Cambridge: Cambridge University Press, 1999), 146f.
G. Esping Anderson, Social Foundations of Post-Industrial Economics (Oxford: Oxford University Press, 1999), 76–77.
R. Minns, The Cold War in Welfare: Stock Markets Versus Pensions (London: Verso, 2001).
Pensions Commission, Pensions: Challenges and Choices, The First Report of the Pensions Commission October 2004, chapter 1.
See, for example, the Speech of Gorden Brown, Chancellor of the Exchequer, at the launch of the Charity Bank, 17th October 2002. There, Brown’s ‘vision of Britain’ included networks of local volunteers supplying services that were previously supplied by the state and David Blunkett’s Scarman Lecture, ‘Active Citizens, Strong Communities – building civil renewal’, 11 December 2003, where he opined that ‘civil renewal’ was an ‘on-going ethos to be applied to the development of active citizenship, strengthened communities and a partnership approach to delivering public services’.
This represents a conflation, not necessarily to the advantage of care givers, of several available models, see S. Duncan and F. Williams, ‘New Divisions of Labour’, Critical Social Policy 22 (2002), 5.
R Levitas, ‘Against Work: A Utopian Incursion into Social Policy’, Critical Social Policy 21 (2002), 449; cf S. Driver and L. Martell, ‘New Labour, Work and the Family’, Social Policy & Administration 36 (2002), 46.
A more detailed analysis of policies post 1997 and their progenitors in the previous Conservative administration is provided by B Jessop, ‘Changes in Welfare Regimes and the Search for Flexibility and Employability’, in H. Overbeek, ed., The Political Economy of European Unemployment (London: Routledge, 2003).
J. Conaghan, ‘Labour Law and ‘New Economy’ Discourse’, Australian Journal of Labour Law 16 (2003).
C. Ungerson, ‘Thinking about the Production and cConsumption of Long-term Care in Britain: Does Gender Still Matter’, Journal of Social Policy 29 (2000), 623.
F. Williams, ‘In and Beyond New Labour: Towards a New Political Ethics of Care’, Critical Social Policy 21 (2001), 467.
SI 2002 no3236 reg 3.
CM5005 December 2000, Work and Parents ‘Competitiveness and Choice’.
Berlant and Warner make the point that ideas of belonging to society are constructed through narratives of reproduction, L. Berlant and M. Warner, ‘Sex in Public’, in L. Berlant, ed., Intimacy (Chicago: Chicago University Press, 2000).
See A. Mooney, et al., The Pivot Generation: Informal Care and Work after Fifty (Bristol: The Policy Press, 2002). The over-fifty generation find themselves often in the position of caring for both their parents and their grandchildren.
A. Phillips, ‘Friends are the new Family’ The Guardian 12 December 2003; and S. Roseneil and S. Budgeon, ‘Cultures of Intimacy and Care Beyond “the Family”: Personal Care and Social Change in the Early 21st Century’, Current Sociology 52 (2004), 135.
S. Thompson, ‘The Agony and the Ecstasy: Foucault, Habermas and the Problem of Recognition’, in S. Ashenden and D. Owen, eds, Foucault Contra Habermas (London: Sage, 1999), 195 at 200.
A. Luchak, ‘What Kind of Voice Do Loyal Employees Use?’, British Journal of Industrial Relations 41 (2003), 115.
S. Nadeem and C. Hendry, ‘Power Dynamics in the Long-term Development of Employee-friendly Flexible Working’, Women in Management Review 18 (2003), 32 at 33, 35.
See, for example, in the corporate context, C. Villiers, ‘Disclosure Obligations in Company Law: Bringing Communication Theory into the Fold’, Journal of Corporate Law Studies 1 (2001), 181.
The idea that there are clear differences between the two and what, if there are, those differences might be is a fertile area of philosophical debate. See S. Hendley, From Communicative Action to the Face of the Other (Maryland: Lexington, 2000), ch.6.
G. Trey, ‘Communicative Ethics in the Face of Alterity: Habermas, Levinas and the Problem of Post-Conventional Universalism’, Praxis Internation 11 (1992), 412 at 414.
R. Gibbs, ‘Asymmetry and Mutuality’, Philosophy and Social Criticism 23 (1997), 51 at 54.
As indeed there are within the feminist critique of Habermas, best established in this context by Benhabib, ‘Afterward: Communicative Ethics and Current Controversies in Practical Philosophy’, in S. Benhabib and F. Dallmayr, eds, The Communicative Ethics Controversy (MA: MIT Press, 1990), 330 and a revised version of this piece in S. Benhabib, Situating the Self (Cambridge: Polity Press, 1992), ch.1. See also N. Lacey, Unspeakable Subjects (Oxford: Hart, 1998), 151–156.
Z. Bauman, Modernity and the Holocaust (Cambridge: Polity Press, 1989).
Z. Bauman, ‘The Social Manipulation of Morality: Moralizing Actors, Adiophorizing Action’, Theory Culture and Society 8 (1991), 137.
For an informative account of Bauman’s work situated within organizational ethics and management theory see M. Parker, ed., Ethics and Organizations (London: Sage, 1998), in particular the individual contributions of Letiche, Desmond and Munro.
J. Roberts, ‘The Manufacture of Corporate Social Responsibility: Constructing Corporate Sensibility’, Organization 10 (2003), 249 at 255.
It is perfectly legitimate for an organisation or a bureaucracy to offer a moral alternative of its own, see P. Du Gay, ‘Colossal Immodesties and Hopeful Monsters: Pluralism and Organizational Conduct’, Organization 1 (1994), 125 but that is not without its dangers, see C. Jones, et al., For Business Ethics (London: Routledge, 2005), 82–85 and R. ten Bos and H. Willmott, ‘Towards a Post-Dualistic Business Ethics: Interweaving Reason and Emotion in Working Life’, Journal of Management Studies 38 (2001), 769 at 781.
R. ten Bos, ‘Essai: Business Ethics and Bauman Ethics’, Organization Studies 18 (1997), 997 at 999
‘Corporate misbehavior is not especially the fault of managers, stockholders, and employees... [I]t is the result we should expect from the legal structure and rules we establish to create the corporation’, L. Mitchell, Corporate Irresponsibility: America’s Newest Export (New Haven, Yale: Yale University Press, 2001), 97.
This is the crux of the debate in the area of corporate manslaughter – can we in a way which respects both the requirements of criminal law doctrine and the jurisprudence of the corporation disaggregate the activities of individuals from the collective?
S. Behson, ‘Which Dominates? The Relative Importance of Work-family Organizational Support and General Organizational Context on Employee Outcomes’, Journal of Vocational Behaviour 61 (2002), 53.
Whether first line managers are in fact supervisors or co-ordinators and whether the role of ‘supervisor’ in the traditional workplace sense still exists in the new workplace is a issue of debate within management and human resource management literature, for a review see C Hales, ‘Rooted in Supervision, Branching into Management: Continuity and Change in the Role of First-Line Manager’, Journal of Management Studies 42 (2005), 471.
D. Winstanley and J. Woodall, ‘The Ethical Dimension of Human Resource Management’, HRM Journal 10 (2000), 5 at 9.
S. Dex and F. Scheibl, ‘Flexible and Family-Friendly Working Arrangement in UK Based SME: Business Cases’, British Journal of Industrial Relations 39 (2001), 411 at 422.
Canadian Department of Human Resources and Social Development, Voices of Canadians: Seeking Work-life Balance, 2003. 70% of employees responding to this nationwide survey (10,000) attributed problems with their employers’ work-life balance programmes as emanating from the position taken by their immediate supervisors.
J. Johnson, ‘Flexible Working: Changing the Manager’s Role’, Management Decision 42 (2004),721.
S. Yeandle, et al., Employed Carers and Family-friendly Employment Policies (Bristol: Policy Press, 2002) and www.jrf.org.uk; S. Lewis, ‘Restructuring Workplace Cultures: The Ultimate Work-family Challenge’, Women in Management Review 16 (2001), 21 at 26; and The Maternity Alliance, Happy Anniversary? www.maternityalliance.org.uk.
H. Holt and L. Thaulow, ‘Formal and Informal Flexibility in the Workplace’, in S. Lewis and J. Lewis, eds, The Work-Family Challenge (London: Sage, 1996). The notion of ‘organizational culture’ is of course steeped in a literature of its own: see D. Denison, ‘What is the Difference between Organizational Culture and Organizational Climate? A Native’s Point of View on a Decade of Paradigm War’, Academy of Management Review 21/3 (1996), 619.
T. Allen, ‘Family-Supportive Work Environment: The Role of Organizational Perceptions’, Journal of Vocational Behavior 58 (2001), 414; and C. Thompson, et al., ‘When Work-Family Benefits are Not Enough! The Influence of Work-family Culture on Benefit Utilization, Organizational Attachment and Work-family Conflict’, Journal of Vocational Behavior 54 (1999), 392.
K. Stone, ‘The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law’, UCLA Law Review 48 (2001), 521 at 607.
Z. Bauman, Postmodern Ethics (Cambridge: Polity Press, 1993), especially 1–13.
H. Letiche, ‘Business Ethics: (In-)Justice and (Anti-)Law – Reflections on Derrida, Bauman and Lipovetsky’, in M. Parker, ed., Ethics and Organisations (London: Sage, 1988), 122 at 135.
Z. Bauman, Life in Fragments: Essays in Postmodern Morality (Oxford: Blackwell, 1995).
This heritage is acknowledged on page 85 of Postmodern Ethics (Oxford: Blackwell, 1993). A review of Bauman’s work in this area which is a model of clarity is offered by A. Latham, ‘An Ethics of the Ephemeral? The Possibilities and Impossibilities of Zygmunt Bauman’s Ethics: a Review of Some Recent Books by Zygmunt Bauman’, Ethics, Place and Environment 2 (1999), 275.
E. Levinas and R. Kearney, ‘Dialogue with Emmanuel Levinas’, in R. Cohen, ed., Face to Face with Levinas (New York: SUNY, 1986), 29.
D. Campbell ‘The Deterritorialization of Responsibility: Levinas, Derrida and Ethics after the End of Philosophy’ in D Campbell and M Shapiro, eds, Rethinking Ethics and World Politics (Mineappolis, MN: University of Minnesota Press, 1999), 29 at p41.
Z. Bauman, ‘The Social Manipulation of Morality’, Theory Culture and Society 8 (1991), 137 at 143.
C Jones, ‘As if Business Ethics Were Possible, “Within Such Limits”...’ Organization 10 (2003), 223 at 227.
A. Vetlessen, ‘ Introducing an Ethics of Proximity’, in H. Jodalen and A. Vetlessen, eds, Closeness: An Ethics (Oslo: Scandinavian University Press, 1997), 1 at 11.
Z. Bauman, ‘Morality Begins at Home-or: Can there be a Levinasian Macro-Ethics’, in H. Jodalen and A. Vetlessen, ibid., 218 at 227.
S. Wheeler, ‘Works Councils: Towards Stakeholding’ (1997) 24 Journal of Law and Society 24 (1997), 44.
Bauman, Postmodern Ethics, supra n. 103, 223.
Z. Bauman, Legislators and Interpreters: On Modernity, Post-Modernity and Intellectuals (Cambridge: Polity Press, 1987).
Employment Rights Act 1996, s. 80G(1)(b).
E. Levinas, Totality and Infinity: An Essay on Exteriority, A. Lingis, trans. (Pittsburgh: Duquesne University Press, 1969), 50.
R. Berasconi, ‘The Alterity of the Stranger and the Experience of the Alien’, in J. Bloechl, ed., The Face of the Other and the Trace of God (New York: Fordham University Press, 2000), 62.
A. Finkielkraut, The Wisdom of Love (University of Nebraska Press, 1997), 12.
B. Smart, ‘Foucault, Levinas and the Subject of Responsibility’, in J. Moss, ed., The Later Foucault (London: Sage, 1998), 78 at 89.
M. Shildrick, Embodying the Monster (London: Sage, 2002), 89.
A. Aarnes, ‘The Other’s Face’, in H. Jodalen and A. Vetlessen, eds., Closeness: An Ethics (Oslo: Scandinavian Univ Press, 1997), 20.
A. Peperzak, et al., Emmanuel Levinas: Basic Philosophical Writings (Bloomington: Indiana University Press, 1996), 6.
E. Levinas, ‘The Paradox of Morality’, in R. Bernasconi and D. Woods, eds., The Provocation of Levinas: Rethinking the Other (London: Routledge, 1988), 58.
E. Levinas, Otherwise than Being: Or Beyond Essence, A. Lingis, trans., (The Hague: Martinus Nijhoff, 1981), 78.
Ibid., at 100–101.
C. Davis, Levinas. An Introduction (Cambridge: Polity Press, 1996).
S. Wheeler, Corporations and the Third Way (Oxford: Hart Publishing, 2002).
T. Donaldson and T. Dunfee, The Ties that Bind (Mass.: Harv University Press, 1999).
E. Levinas, Otherwise than Being (Duquesne University Press, 1998) at 157. Although this point is also taken implicitly in other places.
C. Douzinas and R. Warrington, Justice Miscarried (Hemel Hempstead: Harvester Wheatsheaf, 1994), 178.
S. Critchley, The Ethics of Deconstruction: Derrida and Levinas (Blackwell, 1992), 232.
D. Manderson, Proximity, Levinas and the Soul of Law (Montreal: McGill-Queens University Press, 2006), 183–193.
E. Levinas, Nine Talmudic Readings, A. Aronwicz, trans. (Bloomington: Indiana University Press, 1990), 105–106.