Annotated bibliography

SALLY WHEELER

ETHICS IN THE WORKPLACE

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.

KEY WORDS: corporate, dialogue, ethics, Levinas, work

In April 2003 the Government introduced, by means of an addition to and an amendment of existing employment legislation, provisions for employee leave for domestic reasons. Taken with the conferral of enhanced rights around maternity and paternity leave these provi- sions are the bulwark of the Labour administration’s work-life bal- ance initiative. Specifically, any employee with child care responsibility, provided the child is under six years old or eighteen if disabled and subject to a qualifying period of employment, is entitled to apply to work flexibly.1 The words ‘to apply’ here are crucial as essentially an employee’s request is for a new contract which reflects a different work pattern. The employer is given a range of grounds on which the application may be declined. Additionally, there is a right for every employed individual to unpaid time off to deal with emer- gencies involving a list of statutorily defined dependants.

2 These

rights are enacted as individual rights that each employee is to negotiate for with their employer’s representative. The purpose of this

1 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.

2 Employment Rights Act 1996, s. 57A and s. 57B as inserted by the Employment

Relations Act 1999, sch 4 (II) para 1.

Law Critique (2007) 18: 1–28 � Springer 2006 DOI 10.1007/s10978-006-9008-9

paper is to examine the type of workplace dialogues that might take place in pursuit and consideration of these rights and how these dialogues might be situated within an ethical frame. This is the focus of section ‘Towards ethical dialogues’. In section ‘The structure of labour regulation’, I consider, as background, how these new rights fit within the structure of labour regulation in the UK.

3 In section

‘Changing demographics in the labour market’, I consider how the changing demographics of the labour market shape the identities of those individuals who are in employment.

THE STRUCTURE OF LABOUR REGULATION

The Rise of Individual Rights

Developed economies offer a basket of legislatively grounded labour law rights. These create a baseline for employment conditions and can be termed ‘first generation’ rights. Obvious illustrations are the right to form Trade Unions and to bargain collectively. However, these rights vary greatly in quality across national borders, for example, some regulatory regimes draw no distinction in terms of rights held between full-time employees and part-time employees, others offer greatly reduced protection to part-time employees. In periods where state support of liberal capitalism has been in the ascendancy either from a genuine ideological standpoint or in re- sponse to a perceived need to provide a ‘low-cost, low regulation’ economy, organised labour has seen its position undercut either by direct state intervention or by the state absenting itself as a negoti- ating party.

4 These interventions have sought to roll back these rights

or curtail their exercise. In the UK the period from 1979 onwards reflects exactly these two phenomena. This has frequently left the individual employee to negotiate rights at a contractual level or to petition against encroachment on rights at tribunal level.

5 As Hepple

3 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.

4 S. Lash and J. Urry, The End of Organised Capitalism (Cambridge: Polity, 1987),

280; and L. Dickens, ‘Individual Statutory Employment Rights since 1997: con- strained expansion’, Employee Relations 24 (2002), at 621, 624.

5 A. Pollert, ‘The Unorganised Worker: the Decline in Collectivism and New

Hurdles to Individual Employment Rights’, Industrial Law Journal 34 (2005), 217.

SALLY WHEELER2

and Morris6 point out in the years 1981–2001 the jurisdiction of Employment Tribunals to enforce individual rights has grown from 32 rights to 70 rights, while in the same period the percentage of the workforce covered by statutory collective procedures more than halved from 83% to 35%.

7 In the years between 1997–1998 and

2000–2001 the number of applications to Employment Tribunals rose by 60%.

8

There is a sense in which, by seeking to ground in ethics the dia- logues that individual employees may have with the representatives of their employers, one is endorsing favourably the decline of collective bargaining structures and failing to recognise the power imbalances that inevitably characterise workplace exchanges.

9 An employment

contract can never define the social relationships at play in the employment relationship. There are two responses to this. The first is to underscore the role of ethics. Collective bargaining structures cannot speak to the human interactions, which must underpin the bare contractual relationship; the care that is required of the em- ployee, the discretion that is retained by managers and the initiative that both need to display in their dealings with each other.

10 An

ethically constructed dialogue has the potential to recognise this interaction and allow it to be used to recognise values such as social democracy and equality. Collective bargaining structures are more likely to reflect a negotiation of business case interests.

11

The second is to note that to cling to notions of multi-employer collective bargaining is to ignore the prevailing culture of current industrial relations, certainly throughout the constituent states of the EU, which is towards individual enterprise level settlement.

12 It is at

6 B. Hepple and G. Morris, ‘The Employment Act 2002 and the Crisis of Indi-

vidual Employment Rights’, Industrial Law Journal 31 (2002), 245. 7 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.

8 Department of Trade and Industry, Routes to Resolution (London: HMSO,

2001). 9 J. Hyman and J. Summers, ‘Lacking Balance?’, Personnel Review 33 (2004), 422.

10 R. Hyman, ‘The Europeanization-or the Erosion-of Industrial Relations?’,

Industrial Law Journal 32 (2001), 280. 11

L. Dickens, ‘Beyond the Business Case: a Three Pronged Approach to Equality Action’, Human Resource Management Journal 9 (1999), 9.

12 H. Katz, ‘The Decentralization of Collective Bargaining: A Literature Review

and Comparative Analysis’, Industrial and Labor Relations Review 3 (1993), 47.

ETHICS IN THE WORKPLACE 3

least arguable that the one of the consequences of market centred economic regimes has been to relegate notions of voluntary collective bargaining to the level of myth in any event. Second generation employment rights are those that cluster around ideas of flexible working; parental leave, recognition of particular caring responsi- bilities and the right of employees to achieve work/life balance. The negotiation of working practices around these rights would appear to fit more easily into enterprise level dialogues than traditional collec- tive bargaining structures.

13 As I explain in section ‘Changing

demographics in the labour market’ below, the changing demo- graphics of the labour market mean that recognition of individual identity and individual need is required for second generation employment rights to be effective. This recognition is more likely to be realised through individual dialogues rather than the more tradi- tional approaches.

14 Collective bargaining structures were held dear

by unions is an era where ‘the ‘‘normal’’ worker and hence the ‘‘normal’’ potential trade union member was a full-time employee whose employment status was not merely casual’.

15 Minorities, part-

time workers, women and migrant workers were often left outside formal bargaining structures. This hierarchy of privilege was created by labour laws and endorsed by union approaches to bargaining.16

Dialogue has the potential to ease constraints and offer choices or assist in the making of choices. For employees it offers the mainte- nance of integrity, dignity and a flowering of creativity, for corpo-

13 M. Regini, ‘Human Resource Management and Industrial Relations in Euro-

pean Countries’, in J Niland et al., eds, The Future of Industrial Relations in Europe (London: Sage, 1994).

14 A. Munro, ‘A Feminist Trade Union Agenda? The Continued Significance of

Class, Gender and Race’, Gender Work and Organization 8 (2001), 454. 15

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.

16 K. Stone, ‘The New Psychological Contract: Implications of the Changing

Workplace for Labor and Employment Law’, UCLA Law Review 48 (2001), 521 at 573.

SALLY WHEELER4

rations it offers, in economic terms, the best use of human capital and in political and social terms the opportunity to (re)create their legitimacy.

17 It is the possibilities for the creation of these shared

spaces and the dialogues that might take place within them that I explore in section ‘Towards ethical dialogues’ of the paper.

The Move from Union Representation to Consultation and Participation

At one level the adoption into UK of works councils can be seen as a simple consequence of the Labour administration of 1997–2001 ending the UK’s opt out of aspects of the social policy agenda of the EU. However, on another level it illustrates, just as the rise of indi- vidual employment rights does, the desire of a neo-liberal state to reconfigure the balance of work place relations away from a partic- ular form of organised labour activity and into a dialogue agenda. The history of participation arrangements in the UK18 illustrates this observation. The UK did not look at an agenda wider than the equation between management accountability and the return of profit to shareholders until the Bullock Committee report

19 in 1977 and the

subsequent White Paper. 20

The reality of post-Bullock developments was that ideas of employee participation in governance structures rather than in product quality and development initiatives were very limited. Under the Companies Act 1985 section 309 directors are required to take into account the interests of employees as part of the duty they owe to the company.21 There is no complimentary enforcement mechanism included for the benefit of employees. Under section 1 of the Employment Act 1982 corporations were required to

17 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, ‘Transna-

tional Corporations: International Citizens or New Sovereigns’, Business and Society Review 107 (2002), 391.

18 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).

19 Report of the Committee of Inquiry on Industrial Democracy (1977) Cmnd 6706.

20 Industrial Democracy 1978 Cmnd 7231.

21 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 Cor- porate Constituency Statutes’, George Washington Law Review 61 (1992), 26.

ETHICS IN THE WORKPLACE 5

include in their Annual Report details of the steps they had taken to introduce and develop arrangements for ‘communication, consulta- tion, financial partnership and economic awareness’ amongst their employees. The same legislation restricted the legal basis of the ‘closed shop’ and also opened the way for Trade Unions rather than individual members to be exposed to civil liability for ‘illegitimate strikes’. A typical view of participation arrangements in the UK, prior to EU intervention, is that expressed by Ramsay

22 who sug-

gested that management resorted to participation mechanisms as a way23 of buying off unrest within the corporate structure. This unrest, heralded by worker resistance and challenge, occurred on a cyclical basis within Taylorist-inspired management operations. Participation was not seen as part of a radical agenda forced into corporate structures by a ‘force from below’; nor was it delivered as a result of a macro-political agenda imbued with social and democratic concerns – quite the reverse in fact. It was viewed as a site of management capture. It is unlikely that moves to formulise a participation requirement would alter this perception.

24

A right of participation was introduced across the European Economic Area (EEA), or in some states consolidated and confirmed, in the form of the Works Council Directive.25 The directive provides for mandatory works councils on a supra-national level in all cor- porations that have a labour force of 1000 employees or more with the EEA, with 150 workers (minimum) in two separate states of the EEA. These works councils involve elected members of the workforce in a consultation forum with management. The forum is often held on an annual basis. Consultation is defined by the directive as ‘the exchange of views and establishment of dialogue between employees’ representatives and central management or any appropriate level of management’.26 The specified areas for ‘consultation’ are extremely wide; they range from business development through sales and investment to closures of undertakings. A similar directive minus the

22 H. Ramsay, ‘Cycles of Control: Worker Participation in Sociological and

Historical Perspective’, Sociology 11 (1977), 481. 23

For this view see for example H. Braverman, Labour and Monopoly Capital

(New York Monthly Review Press, 1974). 24

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

25 Directive 94/45/EC of September 22nd 1994.

26 Article 2(f).

SALLY WHEELER6

works council requirement to mirror this level of communication in smaller national level undertakings has recently been introduced.

27

Works councils have yet to become a major player in industrial relations but already it seems that they are being used to create competition between plants in different jurisdictions.

28 There is a

marked reluctance on behalf of corporations embarking upon ‘greenfield site’ production to recognise unions

29 and the de-recog-

nition of unions across existing workplaces has increased. 30

It seems that the works council form of participation is subject to capture within the parameters that Ramsay identified previously.31 One form of labour organisation has been used to de-stabilise another.

32 Ethical

dialogues of the type that I model in section ‘Towards ethical dia- logues’ are unlikely to suffer the fate of capture for two reasons. First, the human resource management policies of large corporations are likely to be administered on a local level with local managers, the corporate structure at large being more interested in the attainment of production and cost targets rather that the minutiae of how these targets are achieved.

33 This is a point to which I return in the final

section of this article. Second dialogues around the working patterns of individuals take place around very much more tightly defined terms of reference that involve a debate rather than the dispensing of general information.

27 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.

28 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).

29 P. Blyton and P. Turnbull, The Dynamics of Employee Relations (Basingstoke:

Macmillan, 1998, 2nd edn). 30

G. Gall and S. McKay, ‘Trade Union Derecognition in Britain, 1988–1994’, British Journal of Industrial Relations 32 (1994), 433.

31 J. Wills, ‘Being Told and Answering Back’, in J. Bryson et al., eds, Knowledge,

Space, Economy (London: Routledge, 2000), 261. 32

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.

33 H. Arthurs, ‘Reinventing Labor Law for the Global Economy’, Berkeley

Journal of Employment Labour Law 22 (2001), 271 at 284.

ETHICS IN THE WORKPLACE 7

CHANGING DEMOGRAPHICS IN THE LABOUR MARKET

The preceding 25 years have seen seismic changes in the personnel participating in the labour market. In the UK these changes can be demonstrated in stark terms by looking at just a few of the statistics available demographics of employment. In 1980 one in three jobs held by men was in manufacturing, in 2001 that figure has fallen to 1 in 5 jobs, in the same time frame the number of women in employ- ment has risen dramatically to almost equal the number of men. The ‘male breadwinner’ family now exists in misty-eyed memory only,

34

the most prevalent model for the family is that of ‘adult workers’ where both men and women are in the labour market. Data from the Bureau of Labor Statistics in the US reveals a similar pattern. By 2003, 61% of families with children had both adults working. Returning to the UK, of the 12.7 million jobs held by women almost half are part-time.

35 There would appear to be three main inter-

related drivers behind these changes and I examine each of them below. The new economic parameters of production dictate the type of employment that is available; this in turn I will argue, produces employees with particular needs. At the same time participation in the labour market has increasingly become the key with which to access welfare systems. Ulrich Beck’s observations36 on the effect of changes in employment structure on the life biographies of individ- uals are also pertinent. The term ‘life biography’ embraces the choices and constraints that individuals find present in their lives as they seek to balance less certain employment with family and other caring issues and general lifestyle concerns.

37 The linkage between life

biography and employment structure is not a one-way street. An ever-expanding range of life choices, particularly for women, has

34 J. Lewis, ‘The Decline of the Male Breadwinner: Implications for Work and

Care’, Social Politics 8 (2001), 152. 35

Figures taken from those made available by the UK Statistical Office,

www.statisticaloffice.org. 36

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. 37

‘The proportion of life opportunities which are fundamentally closed to deci- sion-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.

SALLY WHEELER8

reconfigured the role of employment in many employees’ lives. Work has become instrumental in many instances, important but essentially dull, a means to access other opportunities rather than an end in its own right.

38

Production and Market

In both domestic and foreign employment markets women are now the recipients of low waged and often unregulated employment across the service sector and the light production sector such as the garment trade. Improved production technologies, the need for consumption opportunities to be available 24 hours a day and the time demands of a global economy renders much of this employment part-time. There has been a large increase in homeworking and in the casualisation of labour, often with women as the employees, to keep the costs of production low and productivity high.

39 OECD figures indicate that

there has been a substantial rise in female employment between 1970 and 1990 across developed economies. For example, in the UK the percentage rose from 50.8 to 65.3 and in the US from 48.9 to 61.8. There is no evidence to suggest that these figures are in reverse.

There are two seemingly opposing narratives that speak to the employment experience as distinct from identifying changing partic- ipants in the experience. The first is that the employment market is structured around flexibility, which is characterised by the effects I describe below. The second is that, notwithstanding features such as the growth of technology in the workplace, the employment market is one that is a model of stability. Permanent contracts were more prevalent in 2000 than they were in 1992. The number of employees on fixed term contracts dropped between 1992 and 2000. The resulting claim is that there is ‘a disturbingly wide gulf...between the over-familiar rhetoric and hyperbole we hear daily about our flexible and dynamic labour market and the realities of workplace life’.

40

38 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 prop- osition is rationalised into an issue of declining ‘personal commitment to the work

place’, ESRC Future of Work Programme Seminar Series www.leeds.ac.uk/esrcfu- tureofwork/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. 39

S. Bullock, Women and Work (London: Zed Books, 1994), and H Bradley, et al. Myths At Work (Cambridge: Polity Press, 2000), 51f.

40 Taylor, supra, n. 38 at 7.

ETHICS IN THE WORKPLACE 9

Despite appearances there is not an unbridgeable gap between these two accounts. There needs to be a recognition that any account of change risks the construction of an overly nostalgic picture of the past.

41 It is also the case that while some heavy industries offering a

particular pattern of employment have declined and not been re- placed, others such as catering and technology support have assumed a much greater importance as employment providers. Some of these industries have always offered part-time work and anti-social hours. Changing consumption patterns exacerbate this. Taken together these factors would suggest that within the new economy flexibility is as much a ‘manufactured uncertainty’ as it is an actual reality.

42

The second generation employment rights discussed below may create an opportunity for employees to negotiate the role of work in their lives and for employers to enjoy the benefits of a workforce that is more in tune with its life patterns.

43 Part-time employment is often

held on only short-term fixed contracts. Contract renewal depends more on market situations than performance as production follows the market. Those who work irregular and anti-social hours to meet the demands of the market require services to be available to them 24 hours a day – everything from food shopping to banking. Jobs are often no longer held for a period of years for all sorts of reasons and corporate employers are no longer viewed as providing lifetime job security. Beck describes this as the feminisation of work. Employ- ment in general is beginning to follow the pattern that it traditionally offered women: ‘[no] career but rather combinations of part-time work, casual contracts, unpaid work...’.

44 By way of example, in 1993

the last shipyard, the Swan Hunter yard, on Tyneside in the UK, once the region where one quarter of global shipping traffic was con- structed, closed, due at least in part to an inability to compete with yards in Sweden and Japan. A study of Swan Hunter’s former employees revealed that 43% of those who subsequently found

41 A. Pollert, ‘The Orthodoxy of Flexibility’, in A. Pollert, ed., Farewell to Flex-

ibility (Oxford: Blackwell, 1991), 4. 42

K. Doogan, ‘Insecurity and Long-term Employment’, Work Employment and Society 15 (2001), 419 at 422.

43 There is now a large literature that deals with the negative consequences of

family/work conflict; poor physical health: adverse behavioural issues: job dissatis-

faction 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.

44 Beck, supra, n. 36, at 64.

SALLY WHEELER10

employment were on temporary contracts and saw this as a situation that would continue. Skill and age were the keys to finding employ- ment. Only 28% of unskilled manual workers found re-employment as opposed to 61% of those who had been engaged in design work.

45

The effect of streamlined production technologies on participation in the labour force can be seen from examining figures on the length of the working week and the level of unemployment in developed economies. The working week, that is, what is considered to be full- time employment, has been in consistent decline since the 1970s and at the same time unemployment has risen, despite the absorption of large numbers of additional female workers into employment. Remuneration from so-called full-time work increasingly provides insufficient income for employees, resulting in the taking of a second job.

46 The so-called knowledge economy has not then created sig-

nificant amounts of full-time employment. Full-time paid work has declined in availability and work is increasingly unavailable for the unskilled.

47 The replacement of fordist work practices with new work

technologies has introduced manual workers to the idea of flexible working – possession, perhaps, of only a part-time job or two part- time jobs.

48 Much part-time employment seems to involve unpaid

overtime and flexibility and cost savings for the employer only.49

Employers can manipulate the hours worked by part-time employees to keep them below the National Insurance contribution threshold. For the employee there are no similar cost savings or flexibility gains – for example, child care arrangements have to be made around part- time employment resulting in the employee having their life struc-

45 J. Tomaney, et al., ‘Plant Closure and the Local Economy. The Case of Swan

Hunter on Tyneside’, Regional Studies 33 (1999), 401. 46

According to the National Study of Changing Workforce 1997 (familiesand- work.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. 47

H. Beynon, ‘The Changing Practices of Work’, in R. Brown, ed., The Changing Shape of Work (Basingstoke: Macmillan, 1997), 20.

48 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.

49 S. Vallas, ‘Rethinking Post-Fordism: The Meaning of Workplace Flexibility’,

Sociological Theory 1 (1991), 68.

ETHICS IN THE WORKPLACE 11

tured by continuous deadlines imposed by schools, employer and after-hours child carer.

50 This is demand-driven flexibility as opposed

to supply-driven flexibility, that is flexibility at the employer’s rather than the employee’s request. The provisions on flexible working may assist in locating the prevailing culture away from a demand-driven model towards a more balanced situation.

51

Lifestyle Choices

The effect of structuring the economy in this way is to provide par- ticular sorts of workers. Risk is mediated not through the provision of collective welfare but placed on the individual using the motif of responsibility.

52 It is the responsibility of the individual to enter the

labour market taking advantage of government-sponsored schemes for training or employment if necessary.

53 Caring responsibilities and

ideas of active citizenship encouraged in other fora are presumably to be fitted around participation in employment. The individual is thrust into the spotlight in a way that is different from the market indi- vidualism of previous eras of capitalism. Then market individualism followed the dominant narrative of modernity. Now the individual has to balance opportunities from within a climate of personal autonomy. As Giddens expresses it ‘the self becomes a reflexive project... Individuals cannot rest content with an identity that is simply handed down, inherited, or built on a traditional status. A person’s identity has in large part to be discovered, constructed, actively sustained’.54 This can mean a discovery of race, sexuality, or

50 R. Crompton, ‘Employment, Flexible Working and the Family’, British Journal

of Sociology 53 (2002), 537 at 541f. 51

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. 52

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. 53

A. Finlayson, Making Sense of New Labour (London: Lawrence and Wishart,

2003),189. 54

A. Giddens, Beyond Right and Left (Cambridge: Polity Press, 1995), 82; see also U. Beck, ‘The Reinvention of Politics: Towards a Theory of Reflexive Moderniza-

tion’, in Beck, Giddens and Lash, eds., Reflexive Modernization: Politics, Tradition and Aesthetics in the Modern Social Order (Cambridge: Polity Press, 1994), 14.

SALLY WHEELER12

perhaps unfulfilled dreams. More distressingly at a macro level the journey towards individual identity may fuel nationalistic politics and territorial disputes.

55 On one level the search for identity can generate

a certain amount of excitement for the individual, on another it can cause a good deal of pain and consternation – ‘we should never be too sure about what we think we are because it could easily happen that, at that precise moment, we are, in fact, something completely different’.

56 It places the individual in a position of making choices

and decisions in a world in which the opposing diametric of flexibility or uncertainty, depending on one’s situation, reign supreme.

The question I explore in the third and final section of this paper is whether these ambitions around identity can be realised within the legislative context now given to employment. The work of Beck

57 is

central to translating these dilemmas into the work place. In Beck’s terms this environment offers ‘new freedom to shape and coordinate one’s own work and one’s own life ...and the risks [of doing so] are shifted from the state and the economy onto the shoulders of indi- viduals.... People are damned to individualization’.

58 Beck ascribes

no specific place to class or gender issues. Rather these issues are dealt with by pointing out that for some their material circumstances and the other structural conditions at play in their lives will make their path to individualisation one strewn with constraints.

59 There are

many cross-cutting identities that repose in each individual employee and may cause that employee to have different interests and a dif- ferent perspective on desirable rights. For example, work status such as skilled or not and full-time or part-time employment are joined by social and cultural issues such as gender, race, ethnicity, sexuality, religious affiliation or not, parent or not, carer or not, to list just some of the possibilities in the adoption of identity. For illustrative

55 S. Bastow and J. Martin, Third Way Discourse (Edinburgh: Edinburgh Uni-

versity Press, 2003), 93f. 56

J. Saramago, The Cave (London: Harvill Press, 2002), 98. 57

See in particular Beck supra, n. 35 at 53–54. 58

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.

59 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.

ETHICS IN THE WORKPLACE 13

purposes I am reminded of the television drama series Clocking-Off,60

now in its fourth series in the UK with the second series currently being shown in Australia and the US. The programme is set in a small textile factory in the North West of England and takes as its by-line ‘how much do you know about the person working next to you?’ Each weekly episode looks at the relationships in an employee’s life and how the demands of these and the responsibilities generated by them dovetail into the practice of work.

The Role of the Welfare State

The link between lifestyle choices and welfare regimes is demon- strated by the issue of pension provision. Market-centred neo-liberal governments

61 of the early 1990s saw pension provision as a reward

to be linked to participation in the formal economy. This stance is softened somewhat now by more social democratic regimes, but these regimes themselves are being driven to welfare reform not least by the rising costs of welfare provision.

62 State provision of income on

retirement in the UK is not index linked to earnings or retail prices and consequently its value in real terms is in decline. Occupational schemes provide an escape from this, even though in both the UK and the US state funds still form at least 40% of pensioners’ in- come.

63 Welfare regimes face being funded by a numerically declining

and ageing work population. This is the product of changing demographics. Life choices are now available to women in terms of control over fertility and life expectancy is increasing.64 The move aware from welfare-based expectations to reliance on personal sav- ings has continued despite shifts in the political ideologies driving governments.

In the UK the relationship between market and non-market par- ticipation in civil society is a tense and conflictual one. Despite articulating on the one hand the importance of caring responsibilities for familial others and stressing the role of care in a wider political

60 www.redproductioncompany.com.

61 N. Rose, Powers of Freedom (Cambridge: Cambridge University Press, 1999),

146f. 62

G. Esping Anderson, Social Foundations of Post-Industrial Economics (Oxford: Oxford University Press, 1999), 76–77.

63 R. Minns, The Cold War in Welfare: Stock Markets Versus Pensions (London:

Verso, 2001). 64

Pensions Commission, Pensions: Challenges and Choices, The First Report of the Pensions Commission October 2004, chapter 1.

SALLY WHEELER14

sense to denote the importance of voluntary work and active citi- zenship,

65 the UK Government has on the other hand continued to

prioritise market relationships 66

through a valorisation of work. The status of paid worker as the status to be desired and achieved is reinforced by policies such as the New Deal

67 and the restructuring of

taxation and National Insurance contributions to make sure that ‘work pays’.

68 Participation in work is seen as an essential condition

of citizenship. 69

The entanglement of welfare benefits with market participation exacerbates, if not causes, the juggling of care respon- sibilities around work by pushing those who already have responsi- bilities in this area into the workplace to take employment that is low grade and poorly waged and stigmatising those who cannot partici- pate or who choose not to. An obvious example of this is the employment of women in the care sector where the skills required and the hours to be worked can fit around their domestic caring responsibilities. This work is likely to be low paid and insecure.

70

There is another narrative that can be told here and that is how a focus on work/life balance pulls us away from what women with caring and other responsibilities may actually want and that is time itself, rather than flexibility that suits their employer. As Williams has

65 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 citi- zenship, strengthened communities and a partnership approach to delivering public

services’. 66

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. 67

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.

68 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).

69 J. Conaghan, ‘Labour Law and ‘New Economy’ Discourse’, Australian Journal

of Labour Law 16 (2003). 70

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.

ETHICS IN THE WORKPLACE 15

pointed out this argues towards a welfare settlement that values care as an alternative to paid work.

71

Care in the familial application of the term is reintroduced into the market relationship through the legislative provisions described above, on the right to have flexible working considered and the right to take time off to deal with emergency issues surrounding depen- dants. The need to provide emergency assistance for dependants recognises a range of relationships that are constructed by employees themselves – to qualify for unpaid leave the person requiring assis- tance must reasonably rely on the employee for that assistance. The superior right of seeking renegotiation of the employment contract is triggered only by care for children by a specified range of adults vis parent, guardian or an adult who has responsibility for the child’s upbringing.

72 There can be no doubt from the December 2000 Green

Paper on work and parents 73

that this was intended to be a provision of limited application that ‘encouraged’ parents to return to the workplace and/or remain there. While the opening statement in paragraph 1.1 recognised that quality of life and the balance between work and other commitments was an issue for ‘everyone’, the remainder of the paper talks only of parents and on some occasions of mothers. The idea of paid work as a status to be desired is clear from paragraph 1.8 which lauds employment as the route out of poverty and dependency. Despite the fact that the final section of this paper explores from a positive standpoint the dialogues that might be possible around the renegotiation of work commitments, it is impossible to ignore the limitations of this legislation. It seems that the only type of caring that is given a serious role in the narrative of ‘family friendly’ working is parental care.

74 Other inter-generational

care patterns such as care for aged or disabled relatives or grand- parents caring for grandchildren are ignored.75 The idea of care being given and received from outside the nuclear family between friends

71 F. Williams, ‘In and Beyond New Labour: Towards a New Political Ethics of

Care’, Critical Social Policy 21 (2001), 467. 72

SI 2002 no3236 reg 3. 73

CM5005 December 2000, Work and Parents ‘Competitiveness and Choice’. 74

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).

75 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.

SALLY WHEELER16

that may well perceive themselves as in a family-type relationship is not recognised.

76

TOWARDS ETHICAL DIALOGUES

Much of the above deals with the position of employees qua employees and not qua managers or qua supervisor. The label ‘employee’ fits into a stylised discussion of the corporation and its environs but has little resonance with the actual world of employ- ment which is composed of a series of horizontal and vertical relationships between individuals. Unlike the power relationship employees have with the corporate structure itself, the power rela- tionship they enjoy with each other as employee, supervisor and manager is one which enjoys more features of reversibility than it does asymmetry.

77 In interactions with immediate and intermediate

managers employees have resistance strategies, albeit at a level that falls far short of the exercise of representative or even direct voice,

78

based around disinterest, low commitment levels and absenteeism. The reality for many employees is that the quality of their work life and any prospects they may have for work/life balance will arise out of their relationship with their immediate or line manager. For employees who are also managers or supervisors of other workers their enjoyment of their job and indeed their work/life balance will come from the way in which they structure the two-way power relation in which they find themselves; how they deal with those who they enjoy power over and how they deal with those who have power over them.

79

76 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.

77 S. Thompson, ‘The Agony and the Ecstasy: Foucault, Habermas and the

Problem of Recognition’, in S. Ashenden and D. Owen, eds, Foucault Contra Hab- ermas (London: Sage, 1999), 195 at 200.

78 A. Luchak, ‘What Kind of Voice Do Loyal Employees Use?’, British Journal of

Industrial Relations 41 (2003), 115. 79

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.

ETHICS IN THE WORKPLACE 17

A Theoretical Hinterland

As will become clear from the remainder of the paper I am suggesting that an interaction centred on the philosophy of Levinas and its subsequent interpretation by Bauman can invigorate the relationship between employee and manager. The use of a discourse ethics structure to create an interpretive framework is more familiar within legal scholarship when that structure derives from Habermas.

80 Any

review of Habermas’ position that is possible in a paper of this length would be trite in the extreme. However, there are several points that should be made in distinguishing Habermasian ethics from the Lev- inasian account that I prefer.

81 Habermasian discourse ethics depend

upon ‘networks of reciprocity which develop within ethical commu- nities’.

82 In this respect there is a similarity to Kant, about whom (in

the context of the scholarship of the corporation) I comment upon below, in the sense in which human reason in the form of ethical propositions is created and validated by a group of individuals who will then themselves be subject to those propositions. This has the effect of making Habermasian ethics most useful in situations where a community needs to define a particular situation and move towards particular goals.

83 For Habermas free and open discussion is a pre-

requisite for arriving at understanding. Even the fulfilment of this requirement does not overcome the fact that Habermas sees the individual as relative to a linguistic community. For Levinas

80 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. 81

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.

82 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.

83 R. Gibbs, ‘Asymmetry and Mutuality’, Philosophy and Social Criticism 23

(1997), 51 at 54.

SALLY WHEELER18

individuality and the possibility of the domination of the individual are issues of explicit recognition.

84

For Levinas it is crucial that social interactions with other people are underpinned by ethical relations because in the absence of ethical relations the humanity of the other may be ignored. To ignore the humanity of the other is to allow the other to become faceless in a crowd. It is then a small step to be indifferent to the fate of the other. In Levinas’ terms this is illustrated by events such as the Holocaust. Bauman offers an account of the Holocaust in similar terms.

85 He

focuses on the issue of ethical distance which leads inexorably to moral adiaphorization or neutrality. He sees the Holocaust not as a one-off event but as something that is illustrative of the triumph of the obligations and reasons created by administrative procedures over any prior sense of duty.

86 This idea can be used as a frame within

which to view the activities of managers in a corporate structure. I would hasten to add that the import of Bauman’s account of the Holocaust into the fields of management theory and business ethics is a well established and well intentioned transfer

87 and does not in any

way intend to trivialise an event of the magnitude of the Holocaust. According to Bauman managers are frequently content to adopt a

position of moral neutrality towards employees. The organisational structure of the corporation allows managers to distance themselves from the consequences of their decisions and to see themselves as remote from employees as individuals.

88 Even physical proximity

84 As indeed there are within the feminist critique of Habermas, best established in

this context by Benhabib, ‘Afterward: Communicative Ethics and Current Contro- versies in Practical Philosophy’, in S. Benhabib and F. Dallmayr, eds, The Com-

municative 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.

85 Z. Bauman, Modernity and the Holocaust (Cambridge: Polity Press, 1989).

86 Z. Bauman, ‘The Social Manipulation of Morality: Moralizing Actors, Adi-

ophorizing Action’, Theory Culture and Society 8 (1991), 137. 87

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.

88 J. Roberts, ‘The Manufacture of Corporate Social Responsibility: Constructing

Corporate Sensibility’, Organization 10 (2003), 249 at 255.

ETHICS IN THE WORKPLACE 19

between manager and employee cannot prevent ethical distance from arising. The face of the employee becomes clouded by the totality of the organisation and its processes.

89 As the goals of the corporate

edifice replace concern for individuals, managers see themselves as freed from the moral demands of the other as they busy themselves with procedural issues or technical events as Bauman calls them. More importantly, not only are they freed in this way but they conceive of an action as moral only if it is based upon a ‘supra- individual moral rule’.

90 As individuals managers are morally inca-

pacitated, the cry of the other will then go unanswered. There is a sense in which the legal structure of the corporation encourages, if not forces managers to take this position.

91 Legal responsibility for

corporate acts falls upon the corporation not upon individual man- agers in the vast majority of cases,

92 whether these acts are tortuous,

criminal or simply immoral. The perpetual succession element of the corporate personality doctrine ensures that the corporation has a lifespan that exceeds that of its executives. However, to end the de- bate here and assume that managers cannot act ethically towards employees is to ignore the phenomenon of the relationship involved in the practice of employment. Bauman uses the term ‘manager’ as a generic term and not as one that recognises the lived experience of organisations, the reality of which is that the ‘manager’ that has most impact on an employee’s life is their immediate supervisor.

93 In the

89 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.

90 R. ten Bos, ‘Essai: Business Ethics and Bauman Ethics’, Organization Studies 18

(1997), 997 at 999 91

‘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.

92 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 juris-

prudence of the corporation disaggregate the activities of individuals from the col- lective?

93 S. Behson, ‘Which Dominates? The Relative Importance of Work-family

Organizational Support and General Organizational Context on Employee Out- comes’, Journal of Vocational Behaviour 61 (2002), 53.

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parlance of human resource management this is their line manager.94

Attributing the same ethical position or lack of position to each individual in the supervisory chain is a denial of individuality. It also assumes that corporate goals are transparent and across the mana- gerial chain. The reality of employment is that function and position within the managerial chain have a huge impact on how workplace goals are constructed. The positions of Human Resources Director, Sales Director and a local level outlet manager are likely to be dif- ferent

95 in this respect and so also in the way in which they view

requests to work flexibly.96

Empirical research carried out to date on the application rather than the adoption of flexible working practices emphasises the role of the first line manager in determining the treatment that individual employees receive.

97 Line managers are now in the position of

experiencing the effects of managing the new ‘non-typical’ worker in the new workplace.

98 They will have to craft strategies to enable them

to assess which workplace goal is most important to them and plan on how to achieve it. Formal flexible working policies at corporation

94 Whether first line managers are in fact supervisors or co-ordinators and whe-

ther 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 Man- agement: Continuity and Change in the Role of First-Line Manager’, Journal of Management Studies 42 (2005), 471.

95 D. Winstanley and J. Woodall, ‘The Ethical Dimension of Human Resource

Management’, HRM Journal 10 (2000), 5 at 9. 96

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.

97 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.

98 J. Johnson, ‘Flexible Working: Changing the Manager’s Role’, Management

Decision 42 (2004),721.

ETHICS IN THE WORKPLACE 21

level are subject to the exercise of discretion by line managers.99 This discretion is often based upon informal organisational culture,

100

such as the value, if any, put upon long hours working or compliance or not with health and safety legislation and the personal values of the line manager. The view that employees have of their supervisor’s stance on flexible working requests is a key factor in determining whether an application to do so is even made.

101 The nodal nature of

economic activity makes for workplaces with short hierarchical chains. This places these ‘line of sight managers’ in the position of having discretion in relation to the work/life balance of those beneath them in the workplace hierarchy, while themselves then being lost in a chain of economic activity spread across other physical locations.

102

The old divisions between ‘blue-collar’ and ‘white-collar’ workers, between worker and foreman have been replaced by a plethora of terms such as group co-ordinator and team leader. Each layer or workplace responsibility requires its possessor to think creatively, flexibly and, I would argue also, ethically.

Morality and Ethics

Bauman 103

provides a useful nuance to Beck’s idea of life biography by pointing out that the individual finds himself or herself in a position of choice; the choice between good and evil. Bauman expects

99 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.maternit- yalliance.org.uk.

100 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 Organiza- tional Climate? A Native’s Point of View on a Decade of Paradigm War’, Academy of Management Review 21/3 (1996), 619.

101 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 Cul-

ture on Benefit Utilization, Organizational Attachment and Work-family Conflict’, Journal of Vocational Behavior 54 (1999), 392.

102 K. Stone, ‘The New Psychological Contract: Implications of the Changing

Workplace for Labor and Employment Law’, UCLA Law Review 48 (2001), 521 at 607.

103 Z. Bauman, Postmodern Ethics (Cambridge: Polity Press, 1993), especially 1–

13.

SALLY WHEELER22

the individual to struggle with both the enormity of the responsibility and the consequences of the choice made. Bauman frames the indi- vidual’s dilemma in moral terms rather than ethical terms. This is something of a departure from the familiar. A central feature of political and social discourse in the present period has been the articulation of contested or problematic issues as ‘ethical problems’ not least in the field of business. For Bauman ethics belongs to modernity, morality is the language of post modernity.

104 It is clear

from the opening forays of Postmodern Ethics that Bauman does not mean that the problems of social justice and human rights, to name but two of our current ethical issues, have gone away. Rather, what he is seeking to do is to explain the limits of ethics as laws/truths which society/authority has created for the individual to follow. Ethics is about universal, dictated duties. Morality is what remains after the exercise of ethical demands. Morality supersedes ethics in suggesting a requirement for human existence in which the ‘other’ rather than ‘the self’ is at the centre

105 and ‘the humanity of man

[comes from] responsibility for the other.’ Bauman, in using the concept of the other in this way, is claiming an intellectual heritage from Levinas.

106 Levinas, as I explain below, sounds his life system in

terms of ethical responses to the ‘other’ rather than moral responses. For Levinas it is morality that governs

107 and ethics – ‘the extreme

sensitivity of one subjectivity to another’ that governs morality. 108

However, there is no lack of synergy between Bauman and Levinas based upon their apparent use of different terminology, as Bauman’s

104 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.

105 Z. Bauman, Life in Fragments: Essays in Postmodern Morality (Oxford:

Blackwell, 1995). 106

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. 107

E. Levinas and R. Kearney, ‘Dialogue with Emmanuel Levinas’, in R. Cohen,

ed., Face to Face with Levinas (New York: SUNY, 1986), 29. 108

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.

ETHICS IN THE WORKPLACE 23

construction of the ‘moral drive’ or ‘moral impulse’109 is a wholly Levinasian call to move beyond codification of behaviour into an arena in which the ‘other’ is recognised as different to me but existing in a relation to me and demanding that I take responsibility for that relation.

110 How I take responsibility through conduct is something

that rests with me, that burdens me. In cases where I act but do not do justice to the other there is no escape from responsibility by blaming others or by citing the demands of society as expressed through law.

111 This idea of the ‘other’ and responsibility to the

‘other’ is at the heart of the dialogue that I think could and should take place between employee and manager/employer.

At least part of Bauman’s focus on morality comes from a desire to distinguish his schemata for existence from Kant’s reliance on ethical laws. In contrast to Kant’s insistence on arguments of reason accepted by reasonable people leading to ethical law and by the exercise of rational thought to ethical action, Bauman sees law as a negative force; one which can only deny rather than support behav- iour based on moral choice.

112 The polarity of position between Kant

and Bauman is important in the context of discussions of corporate behaviour. It is the philosophy of Kant that underpins the ideology of corporate stakeholding with its emphasis on group recognition through a rights-based discourse or a voluntary ethical code.

113 In

contrast to this Bauman triumphs uncertainty. Uncertainty forces choice or put another way ‘frustration of certainty is morality’s gain’.

114 Bauman is offering a continuation here from his earlier work

Legislators and Interpreters: On Modernity, Post-Modernity and Intellectuals.

115 There, Bauman points to the idea of the declining

importance of ‘legislators’ or experts who set rules, in accordance

109 Z. Bauman, ‘The Social Manipulation of Morality’, Theory Culture and

Society 8 (1991), 137 at 143. 110

C Jones, ‘As if Business Ethics Were Possible, ‘‘Within Such Limits’’...’

Organization 10 (2003), 223 at 227. 111

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.

112 Z. Bauman, ‘Morality Begins at Home-or: Can there be a Levinasian Macro-

Ethics’, in H. Jodalen and A. Vetlessen, ibid., 218 at 227. 113

S. Wheeler, ‘Works Councils: Towards Stakeholding’ (1997) 24 Journal of Law

and Society 24 (1997), 44. 114

Bauman, Postmodern Ethics, supra n. 103, 223. 115

Z. Bauman, Legislators and Interpreters: On Modernity, Post-Modernity and Intellectuals (Cambridge: Polity Press, 1987).

SALLY WHEELER24

with which individuals blindly perform. They are to be replaced by ‘interpreters’ who set out a range of explanations and values that may help the individual to come to their choice. Bauman’s antipathy to law and rule-based structures in general does not militate against using his ideas of individual moral choices and recognition of the other to underpin a discussion of the legislative framework around applications to work flexibly. This is because the legislation in question creates not a rule-based structure but instead sets up the possibility of dialogue between employees and employers/managers. An employer is required to cite his reason or reasons for not acceding to a flexible working request from a list provided in the statutory provision

116 but this determination can only be made after the em-

ployer or his representative has looked upon ‘the face of the other’ and, to use the language of Levinas, has decided to take responsibility for that relation.

The Face of the Other

What is required is the establishment of a relationship with the face of the other;

117 the other that is entreating for consideration in the face

of adversity and vulnerability. Totality and Infinity is the central text in the Levinasian canon for ascertaining what is meant by this idea.

118 The face-to-face relation, which is not an encounter in the

sense of totality, has an ethical significance. The face of the Other is inaccessible from outside and so cannot be reduced to impersonal reason. It is this focus on individuality and recognition that places Levinas and Bauman together in opposition to Kant. For Levinas an encounter with ‘the face of the other’ is not an encounter that requires the appearance or the visibility of the other.

119 Instead, Levinas is

referring to notions of human fraternity that demand that responsi- bility for the other is taken, that care for the other is exercised before care of the self.

120 He is appealing for the face to be respected and

116 Employment Rights Act 1996, s. 80G(1)(b).

117 E. Levinas, Totality and Infinity: An Essay on Exteriority, A. Lingis, trans.

(Pittsburgh: Duquesne University Press, 1969), 50. 118

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.

119 A. Finkielkraut, The Wisdom of Love (University of Nebraska Press, 1997), 12.

120 B. Smart, ‘Foucault, Levinas and the Subject of Responsibility’, in J. Moss,

ed., The Later Foucault (London: Sage, 1998), 78 at 89.

ETHICS IN THE WORKPLACE 25

regarded rather than looked at.121 When Levinas ties the idea of the face to a sense it is to hearing rather than seeing.

122 Levinas’ idea of

the human relation is that it takes precedence over both logic and reason. I give more explanatory force to this proposition below but what is important here is the choice of the term ‘interaction’ when seemingly it does not fit into the Levinasian schemata. For Levinas a speech situation is the ‘original relation’.

123 The face of the other is

something that is spoken to. When the other is called, spoken to or listened to the other is not being contemplated but conversed with. Hence ‘Interaction’ is used to signal the idea that the manager/em- ployer has no choice but to stand as an individual in relation to an employee who is requesting a contract variation to allow flexible working, rather than shelter behind the corporate edifice. It is their relationship that is ethical rather than the converse situation of an ethics of operating being established as a result of their discussions. The interaction requested by the legislative structure pushes the manager/employer into an obligation that cannot be effaced.

124 As

with the idea of face the question of proximity for Levinas is not one of spatial relationship or spatial environment; ‘the proximity of beings of flesh and blood is not their presence in flesh and bone’.

125

Proximity instead is the relationship with the other that ‘cannot be reduced to any modality of distance or geometrical contiguity, nor to the simple ‘representation’ of a neighbour; it is already an assigna- tion...an obligation’.

126 This takes us back to Bauman’s observation

of the choice that an individual has: to be moral or not. Levinasian ethics, in common with all expression of ethical

thought that are anti-universalistic (virtue ethics and ethics of care being but two examples), does not include a ‘distribution’ mecha- nism. In fact Levinasian ethics goes further than either virtue ethics or ethics of care away from ‘guidance’ mode by declining to discuss virtues or characteristics or offer anything that could be used as a

121 M. Shildrick, Embodying the Monster (London: Sage, 2002), 89.

122 A. Aarnes, ‘The Other’s Face’, in H. Jodalen and A. Vetlessen, eds., Closeness:

An Ethics (Oslo: Scandinavian Univ Press, 1997), 20. 123

A. Peperzak, et al., Emmanuel Levinas: Basic Philosophical Writings (Bloom-

ington: Indiana University Press, 1996), 6. 124

E. Levinas, ‘The Paradox of Morality’, in R. Bernasconi and D. Woods, eds.,

The Provocation of Levinas: Rethinking the Other (London: Routledge, 1988), 58. 125

E. Levinas, Otherwise than Being: Or Beyond Essence, A. Lingis, trans., (The Hague: Martinus Nijhoff, 1981), 78.

126 Ibid., at 100–101.

SALLY WHEELER26

normative guide for resolving dilemmas.127 In the context of an ethics for business Levinasian ethics stands apart from all other models whether it be the Kantian scheme referred to above, Aristotelian ethics,

128 social contract-based ethics

129 or discourse theory, all of

which are popular as guiding theories for business ethics. Specifically, in the area of flexible working this means that Levinasian ethics does not explain how the parties to a dialogue about flexible working arrangements should structure their interaction, nor does it explain how competing claims should be resolved. Levinasian ethics stands or falls by its ethical exhortation – to take responsibility for the other. When taking this responsibility there will be numerous occasions when there is no obvious right choice or even consensus on the right choice. The point is that the absence of this pre-ordained choice gives space for the individual to voice their concerns.

When considering requests to pursue flexible working a first line manager is not considering that request in isolation from the interests of the corporation or other workers. Any request to work flexibly made under the Employment Act 1996 section 80F must first be considered against a list of eight criteria provided within the legis- lation which form the only basis on which a request can be refused. These grounds range from those that pertain to the individual, such as an insufficiency of work during the periods an individual proposes to work to those that address planned structural change within the business itself. As if to emphasise the breadth of the framework within which these requests have to be assessed, two of the criteria (‘detrimental impact and quality’ and ‘detrimental impact on per- formance’) could and perhaps do apply to both the individual and the corporation. The legislation is silent as to the subject of these two criteria. This sets up a situation where Levinas’ call to infinite responsibility may produce conflicting choices. Levinas recognises this difficulty with his ethical imperative when he refers to the ‘third’ and the fact that once proximity extends beyond just one other to encompass the third, in his terms another neighbour and a neighbour of the other, distinguishing between the two is impossible.

130

127 C. Davis, Levinas. An Introduction (Cambridge: Polity Press, 1996).

128 S. Wheeler, Corporations and the Third Way (Oxford: Hart Publishing, 2002).

129 T. Donaldson and T. Dunfee, The Ties that Bind (Mass.: Harv University

Press, 1999). 130

E. Levinas, Otherwise than Being (Duquesne University Press, 1998) at 157. Although this point is also taken implicitly in other places.

ETHICS IN THE WORKPLACE 27

Infinite responsibility for the other, including the third, is limited in Levinas’ calculation by justice

131 because ‘in...justice, I and the

Other can be compared as contemporaries or peers...At the level of justice I and the Other are co-citizens of a common polis’.

132 Within

justice Levinas includes not only the rule of law but also notions of co-existence, contemporaneousness and co-presence. The idea of law is not a developed concept within Levinas’ thought. What is much more important to him is the ethical inspiration that underlies law. Law in the form of legislation and institutions to be founded in justice needs to be based in the abandonment of self interest. Then legisla- tion and institutions can help to build relationships with others.

133

Justice embodies an acknowledgement of the ‘personal nature of persons’, ‘human dignity’ and ‘human personality’.

134 This translates

into an acknowledgement and engagement in the workplace with different existences and the demands of those existences. Ethics within law demands the recognition that there is always a choice to be made.

SALLY WHEELER

School of Law Queen’s University Belfast 29 University Square Belfast BT7 1NN Northern Ireland, UK E-mail: [email protected]

131 C. Douzinas and R. Warrington, Justice Miscarried (Hemel Hempstead:

Harvester Wheatsheaf, 1994), 178. 132

S. Critchley, The Ethics of Deconstruction: Derrida and Levinas (Blackwell, 1992), 232.

133 D. Manderson, Proximity, Levinas and the Soul of Law (Montreal: McGill-

Queens University Press, 2006), 183–193. 134

E. Levinas, Nine Talmudic Readings, A. Aronwicz, trans. (Bloomington: Indiana University Press, 1990), 105–106.

SALLY WHEELER28

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