Legal Form and Temporal Rationalities in UK Work–Life Balance Law

AbstractThis article attempts to crack open the temporal assumptions in the goal of ‘balancing’ work and family, as it is mobilised in UK law. Within studies of gender and labour, ‘balance’, as a concept and a politico-legal objective, is worthy of much more scholarly attention than it has received to date. In the UK context, balance is understood as a means of achieving equilibrium, both at the level of the labour market and within the context of unpaid care. Specifically, mobilising the short horizon of a ‘reckonable present’, balance creates a paradigm or topos through which dilemmas of value and care can be played out and resolved. The specific qualities of the UK's right to request flexible work, for its part, indicate that law's temporal qualities can have specific regulatory functions, shifting scale and reframing responsibilities. By looking closely at legal technicalities, we can discern much about the conceptual logic that affects many of us through influential regulatory strategies. The political imperative of analysing work–life balance might, in this way, require us to return not only to time, but also, strangely, to legal form. ACKNOWLEDGEMENTSMany thanks to Lisa Adkins, Donatella Alessandrini, Kate Bedford, Maryanne Dever, Judy Fudge and the anonymous reviewers for Australian Feminist Studies for wonderful engagement and feedback. Thank you also very much to the participants of the Elusive Equalities conference (Oxford, 2012), the Gender and Labour in New Times workshop (Sydney, December 2012), the Gendering Labour Law workshop (Kent), the Gender and Labour Law stream of the Labour Law Research Network (Barcelona) (both June 2013) and the AHRC Technoscience, Law & Society network for engaging and extremely useful feedback. Any errors remain my own.Notes1. Many rights are available only to the privileged status of ‘employee’, so the limits of employment status also function as the limits of employment protection.2. Interacting with the employment contract are other sources of labour rights, such as statutory equality rights, for example, and collective agreements.3. Section 80F reads as follows:An employer to whom an application under section 80F is made shall deal with the application in accordance with regulations made by the Secretary of State, andshall only refuse the application because he considers that one or more of the following grounds applies the burden of additional costs,detrimental effect on ability to meet customer demand,inability to re-organize work among existing staff,inability to recruit additional staff,detrimental impact on quality,detrimental impact on performance,insufficiency of work during the periods the employee proposes to work,planned structural changes, andsuch other grounds as the Secretary of State may specify by regulations. 4. HC Deb 25 February 2013, column 49.5. And with consideration. In private law, consideration is something of value (including a promise to act or not to act) given by one party to another and is vital to the creation or lawful variation of a contract. This is significant because without the employer's agreement and fresh consideration, any employee simply proceeding to vary their own working hours without agreement could, in theory, find themselves in breach of contract. The employer's remedies for this, depending on the seriousness of the breach and whether the employer suffered any loss, could include dismissal and/or an action for damages (the latter claim is not often taken by employers against employees, except in situations where an employee is highly paid or key to a business).6. Quoting Lord Nicholls in Malik and Mahmud v. Bank of Credit and Commerce International, at 610. ICR 606 at 610. The application of the duty of mutual trust and confidence to a failure to consider a request for flexible work happened in the case of Shaw v CCL Ltd (unreported, UKEAT/0512/06/DM). Note that this case came long after the introduction of the statutory right to request flexible work and so is also partially reliant on another implied duty not to act in contravention of a statutory right, here, the right to request flexible work itself. To avoid getting into too much of a chicken and egg discussion (which came first, the right to request or the application of an implied duty to a failure to consider a flexible work request?), I am going to make the justified (I think) assertion that on the usual principles of the implied duty of mutual trust and confidence, this duty would have applied to a failure to consider a request for flexible work even if the right did not exist in statute. The implied duty of mutual trust and confidence has been held to apply to a range of discrimination situations, and the courts would be well able to interpret failure to negotiate over flexible work as sex discrimination. See cases such as Bracebridge Engineering Ltd v Darby (1990) and Meikle v Nottinghamshire County Council (2005).7. HC Deb 25 February 2013, columns 131–132.Additional informationNotes on contributorsEmily GrabhamEmily Grabham is a Senior Lecturer in Law at the University of Kent, UK. Her research interests include gender and labour regulation, law and time, and feminist legal theory. She is the holder of an ESRC Future Research Leaders' Award for a 3 year project investigating the legal regulation of precarious workers with care commitments in the UK. Her forthcoming monograph In Law's Time: Legal Temporalities in Equality Projects is a socio-material investigation into the creation of temporalities in UK and Canadian equality laws.

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