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): 25Google Scholar.

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

³ See Ashiagbor, D., The European Employment Strategy: Labour Market Regulation and New Governance (Oxford: Oxford University Press, 2005)CrossRefGoogle Scholar and Collins, H., “The Right to Flexibility,” in Labour Law, Work, and Family, ed. Conaghan, J. and Rittich, K., 99–124 (Oxford: Oxford University Press, 2005)Google Scholar.

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)Google Scholar.

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

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

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., 77–97 (Oxford: Hart Publishing, 2006)Google Scholar, and Labour Law, Work, and Family, ed. Conaghan, J. and Rittich, K. (Oxford: Oxford University Press, 2005)Google Scholar.

¹² See Anderson, L., “Sound Bite Legislation: The Employment Act 2002 and New Flexible Working ‘Rights’ for Parents,” Industrial Law Journal 32 (2003): 37–42CrossRefGoogle Scholar; James, G., “The Work and Families Act 2006: Legislation to Improve Choice and Flexibility?” Industrial Law Journal 35 (2006): 272–78CrossRefGoogle Scholar.

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: 19Google Scholar.

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: 101–30Google Scholar.

¹⁷ Ibid.

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.

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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.

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³⁴ Ibid., 79.

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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.

⁴⁰ Ibid.

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.

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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.

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