Now That We Care About Carers: Temporal Casualisation in ‘Mencap’ and ‘Uber’
Although not as celebrated as the Uber litigation, Mencap is one of the most significant labour law cases of the last decade. It offers the UK Supreme Court the opportunity to herald a post-crisis era of decent treatment for essential workers.
By Deirdre McCann*
A few weeks before the coronavirus lockdown, one of the most important labour law cases of the last decade was heard by the Supreme Court. Royal Mencap Society v Tomlinson Blake [2018] EWCA Civ 1641 has not attracted the attention directed to the Uber litigation, which has followed Mencap through the courts and will also be heard by the Supreme Court later this year. Yet Mencap will have significant ramifications for a segment of the British workforce that is at the frontline of the response to the virus, namely care workers.
The pandemic has driven home that the workers most essential to us are often in low-paid and insecure jobs: care workers, bus drivers, postal workers, delivery drivers, supermarket staff, cleaners, utility workers and refuse collectors, among others. When we emerge from the crisis — to an economic landscape that it is difficult to envisage — it should be a priority to radically improve the treatment of these key workers who are risking their lives and wellbeing for our safety.
This newfound respect must incorporate recognition and remuneration of care labour. The Court of Appeal judgment in Mencap, however, further undermines wages and informalises working relationships in the care sector. If the Supreme Court overturns this decision, it would be a fitting prelude to a kinder era.
Time-drainage in Mencap and Uber
In Mencap, the Court of Appeal excluded care workers from the coverage of the National Living Wage (NLW)/National Minimum Wage (NMW) during shifts in which they are entitled to sleep. The Court’s judgment in Uber BV (UBV) v Aslam [2018] EWCA Civ 2748 held a group of private hire drivers to have been party to a worker’s contract during periods that include when they were waiting to be assigned a passenger.
Mencap and Uber tend to be considered separately. The cases juxtapose two apparently dissimilar segments of the labour force: drivers and carers. My recent paper, however, argues that, while superficially distinct and of contrasting outcomes so far, these cases should be understood as emanations of a common drive: towards the accelerating casualisation of the UK labour force. Specifically, Mencap and Uber both showcase business strategies that have been fashioned to drain vulnerable periods — of different genres — from the protective ambit of labour law, or what I term ‘temporal casualisation.’ Indeed, Mencap and Uber highlight a heightening cross-sectoral targeting of vulnerable time, both centred on notions of ‘availability.’ The Supreme Court appeals therefore offer an opportunity to reflect on the evolving role of legal regulation in structuring this dimension of casualisation.
The Framed Flexibility Model: Productivity regulation and the unitary approach
My paper argues that a model regulatory framework designed in earlier work with Jill Murray — the Framed Flexibility Model — is of value in conceptualising working time in Mencap and Uber. The Model presents a conceptual framework for working time regulation that identifies key functions for this sub-field of labour law: to balance flexibility and security and support the reconciliation of waged work with family life and unwaged domestic labour. To this end, the Model pairs universal norms with mechanisms that provide flexibility in the interests of both employers and workers.
Towards conceptualising working time in Mencap and Uber, the Framed Flexibility Model identifies and distinguishes the two principal regulatory approaches: productivity regulation and the unitary approach.
Productivity regulation excludes from legal conceptions of working time periods that are, or are characterised as, non-productive. It bifurcates working hours into ‘active’ or ‘inactive’ periods. ‘Inactive’ hours are devoted to remaining available to perform the primary tasks of a job and assumed to be non-productive. Implicit in productivity regulation is an assumption that the regulation of working time is intended to account for the arduousness of labour, rather than to recognise, compensate, and constrain periods that workers spend apart from their families or other dimensions of their lives. As such, productivity regulation has the potential to sanction both long and variable hours and low wages.
The productivity regulation paradigm hosts a further risk: it has the capacity to stimulate casualisation. It is feasible, that is to say, for a range of time-periods to be designated ‘inactive’: travel time, for example, ‘on-call’ periods of various kinds, and, in Mencap and Uber, periods in which carers spend on overnight shifts or drivers await a passenger. This bifurcation strategy is therefore available to exclude genuinely or ostensibly inactive hours from regulated work across economies as a whole, draining time from the protected working week.
In contrast, the Framed Flexibility Model incorporates what it characterises as the unitary approach. This counts all periods of time spent in the workplace, and sometimes beyond, as working time. There is no activity/inactivity bifurcation. Working time is defined as time at the disposal of the employer. This location-oriented unitary model sustains a rich, work/family-oriented notion of working time, in which waged labour is regulated in part to recognise and limit workers’ absence from other elements of their lives.
A key feature of the Framed Flexibility Model is that the unitary approach is applicable not just to working time entitlements but also to wage regulation. In the latter context, all periods at the disposal of the employer are recognised as taking ‘time out of life’ from obligations such as domestic responsibilities, childcare, and eldercare, and therefore equally deserving of full compensation.
Uber: A unitary approach (so far) prevails
In Uber, the Court of Appeal embraced the unitary model. As is widely-known, a group of current and former Uber drivers are claiming entitlement to the NMW and to paid annual leave under the Working Time Regulations 1998. The drivers have — so far — been held to be party to a worker’s contract when they were within the territory in which they were licensed to use the Uber app (London), had the app switched on, and were ready and willing to accept passengers. The Employment Tribunal and Employment Appeal Tribunal [2018] IRLR 97 EAT also held the drivers to be in ‘working time’ under the Working Time Regulations across these periods and in ‘hours worked’ under the National Minimum Wage Regulations 2015.
These decisions encompass a species of slack time intrinsic to the taxi and private hire sector — periods in which drivers are waiting to be dispatched. In the techno-organizational environment of Uber, drivers are logged onto the app and waiting to be assigned a passenger. Uber’s argument has been that its drivers are untouched by employment law until they are ‘performing the function for which…the contract exists, namely carrying a passenger.’
Uber, then, like Mencap, exhibits a litigation strategy tailored to induce time-drainage. First, a discrete ‘availability’ time is identified. Next, an argument is made that this period should be carved out from protected time. In Uber, this logic is being applied to platform work and facilitated by a technological environment that permits a near-infinite dissection of the working day. The courts are being urged to single out time periods that are intrinsic to standard work-shifts, yet to distinguish these periods from protected time.
All of the judgments in Uber have adopted a unitary approach, at least in gauging the duration of the worker’s contract. The ET delivered an instantly memorable dismissal of productivity regulation, quoted by the Court of Appeal, which deftly linked the productivity expectations of the hirer to the entire expanse of the drivers’ labour. Uber’s vision, the Tribunal observed, ‘confuses the service which the passenger desires with the work which Uber requires of its drivers in order to deliver that service… Being available is an essential part of the service which the driver renders to Uber.’
So far, then, the courts’ analysis in Uber has been in line with the location-oriented unitary approach of the Framed Flexibility Model. The Court of Appeal’s judgment is a valuable defence of the unitary approach, if accompanied by a risk that a more targeted focus on the Working Time Regulations and National Minimum Wage Regulations will involve attempts to have the drivers’ ‘availability time’ excised (within the span of their contract but not working time (Working Time Regulations) or ‘hours worked’ (National Minimum Wage Regulations)).
Mencap: A threat to the unitary model in care work
Simultaneously, the unitary approach is under threat in the legal regulation of care work. The decision of the Court of Appeal in Mencap upended the judicial settlement on overnight shifts in the care sector. In doing so, it has offered an interpretation of the National Minimum Wage Regulations that endorses temporal casualisation in that sector and more broadly.
Mencap is one of two joined cases on the waged hours of care workers. It was brought by a care support worker employed to provide care to vulnerable adults. The question at the core of Mencap is whether the entirety of a care worker’s presence on the premises of a client should be paid the NLW/NMW. The working arrangements under scrutiny are standard in the sector: a carer working in a client’s home is required to remain overnight to provide support as needed and is permitted and/or expected to spend some of that time sleeping.
Claire Tomlinson-Blake provided support to two clients with autism and substantial learning disabilities who lived in their own homes and required 24 hour support. This care was provided by a team of care support workers present in the men’s homes at all times. Tomlinson-Blake usually worked a day shift and the following morning shift, both part of her salaried hours. She was also required to carry out an overnight shift between 10 pm and 7 am, for which she received a flat rate plus one hour’s pay. During this ‘sleep-in,’ she was provided with a bed and obliged to remain at the house throughout to ‘keep a listening ear out’ in case her support was needed, intervene where necessary, respond to requests for help and deal with emergencies. When she intervened to help the clients, she was paid her hourly wage but only after the first hour.
Within the Framed Flexibility Model, overnight hours are fully counted — and waged — as working time. Under the National Minimum Wage Regulations where — as in Mencap — work is classified as ‘time work,’ all ‘hours worked’ are to be paid the NLW/NMW under the National Minimum Wage Regulations, regulation 31. Regulation 32(1) extends this entitlement to ‘hours when a worker is available, and required to be available, at or near a place of work for the purposes of working.’ The extended entitlement during availability periods does not apply, under Regulation 32(2), where the worker ‘by arrangement sleeps at or near a place of work,’ unless she is ‘awake for the purposes of working.’
Pre-Mencap: The unitary model
Prior to Mencap, the case law — albeit with some missteps — sustained a unitary model by distinguishing between working time (Regulation 30) and on-call periods (Regulation 32). Regulation 32 was therefore triggered when an individual was not working, but rather on-call and waiting to return to work if needed. This approach protected care workers during overnight shifts, for example in the Employment Appeal Tribunal decision in Whittlestone v BJP Home Support Ltd [2014] ICR 275.
The case law was grounded in a sophisticated conception of working time that countered productivity regulation. The key components can be illustrated by quoting from Langstaff P in Whittlestone: the case law dispensed with intensity of activity as the gauge of protected time (‘work is not to be equated to any particular level of activity’); shunned everyday definitions of work (‘[c]olloquially, work might bring to mind images of physical or sustained mental effort. Neither is necessary …’); and recognised that a carer’s level of activity is largely dictated by her employer’s work organisation (‘[t]he fact that [the carer’s] physical services were not called upon during the night were [sic]… irrelevant since her job was to be there.’)
Yet overnight shifts appear to have been widely unpaid in the care sector, as an element of broader patterns of underpayment and deficient enforcement and in part because the government’s guidance on calculating the minimum wage did not robustly convey the demands of the unitary case law until 2015. This was the backdrop to the Mencap litigation.
Mencap: Productivity regulation and the potential for sleep
In Mencap, the Employment Tribunal and Employment Appeal Tribunal [2017] ICR 1186 held that Ms Tomlinson-Blake was in ‘time work’ and therefore entitled to receive the NMW across overnight shifts under regulation 30. The Court of Appeal, however, held that she was ‘available for the purposes of working’ under regulation 32 and therefore not entitled to the NMW except for periods during which she was ‘awake for the purposes of working.’
At the heart of Mencap judgment is an unvarnished rendition of the productivity regulation model in which remuneration is inescapably linked to physical activity. In particular, the potential for episodes of waged-sleep captivated the Court of Appeal.
The Framed Flexibility Model, grounded in a worker being at the disposal of the hirer, readily covers sleeping periods. The unitary approach of the pre-Mencap case law also precludes the automatic exclusion of periods when workers are asleep: ‘an individual may be working merely by being present if he or she is simply required to deal with anything untoward that might arise in the course of the shift but is otherwise entitled to sleep’ (Burrow Down Support Services Ltd v Rossiter [2008] ICR 1172). Underhill LJ, however, in the sole judgment in Mencap, held that ‘the essence of the arrangement is that the worker is expected to sleep,’ distinguishing this case from the unitary precedents and propelling Tomlinson-Blake’s overnight shifts beyond the reach of Regulation 30.
Mencap highlights that overnight shifts are being conceptualised in legal strategy — both compliance and litigation — as another form of ‘availability time,’ to be carved out from bounded and fully-waged work. The architecture of the NMW regime — by explicitly excluding periods of time spent at the workplace — embeds a legislative vulnerability that is being leveraged in employers’ legal strategies and was absorbed into the decision of the Court of Appeal. Mencap reveals periods in which there is potential to sleep as among the hours that are most vulnerable to time drainage in the pre-crisis phase of temporal casualisation. What greater degree of inactivity, after all, than sleep?
In fact, the judgment has been argued by Hayes to overstate the sleep expectation, misunderstanding the nature of care for people with very complex needs. In Mencap, characteristically of care work in domestic settings, there was a fairly substantial degree of obligation during overnight shifts that involved a high level of responsibility, condensed in Ms Tomlinson-Blake’s obligation to ‘keep a listening ear out.’ The act of deciding whether to intervene, as the ET emphasised, required an exercise of Ms Tomlinson-Blake’s professional judgment based on her knowledge of the residents and linked to her capacities as a ‘highly qualified and extensively trained’ care worker. Inactive, and therefore invisible to the productivity regulation model, this exercise of discretion was overlooked.
Underhill LJ’s wariness about waged-sleep was reinforced by a reading of two reports from the early life of the Low Pay Commission (LPC). In the First Report, from June 1998, the Commission made recommendations on the coverage of the forthcoming NMW legislation that would exclude workers ‘paid to sleep’ on the premises, which the government endorsed. In the LPC’s Fourth Report (2003) the Commission responded to the emerging unitary case law, which it considered potentially to extend to ‘sleepover cases.’ These were defined as where the worker is ‘available to deal with emergencies but would not necessarily expect to be woken’ including, as an illustration, workers who care for elderly or disabled persons in their own homes. The LPC felt that ‘sleepover shifts’ should not attract the NMW and requested the government to revise its guidance or change the Regulations. Underhill’s decision was configured to uphold what he felt to be the LPC (and government’s) intent.
There are a number of reservations, however, about the role played by the LPC Reports in the Court of Appeal judgement. The Recommendation in the First Report, first, is ambiguous, and can be read as reflected in the trajectory of the unitary case law (the Employment Appeal Tribunal’s interpretation in Mencap). The Court appeared, secondly, to be unaware that the government had reconsidered this element of the Regulations when they were revised in 2015, concluding that they reflected both government policy and the case law. The LPC, finally, had since made peace with the unitary approach. Explicitly on adult social care, it confirmed in 2017 that ‘[i]f an individual is at work and required to be there they should, in most cases, be paid at least the NMW, even if they are asleep.’
The outcome of the Court of Appeal decision in Mencap is that the only overnight shift hours that count towards the NLW/NMW, in this case and similar scenarios, are those during which a worker actively intervenes to physically assist a client. The outcome for Ms Tomlinson-Blake would usually have been a payment of £29.05 for a 9 hour overnight shift (or £3.23 an hour). It is to be hoped that the Supreme Court will reach a different conclusion.
Obligation as the crux of protection?
In the Framed Flexibility Model, the restriction on autonomy is the crux and all hours of availability to the employer in the workplace — without distinction and including sleeping periods — are remunerated in full. In the absence of such a model, distinctions have to be drawn — even when the worker is at the workplace — between protected and unprotected time. As we have seen, the NMW framework envisages that certain hours spent asleep in a workplace will not attract the minimum wage.
Even within this more constrained model, however, the Court of Appeal judgment in Mencap is unsatisfactory. The unitary analysis from pre-Mencap case law is much better suited to averting temporal casualisation and protecting care workers. Particularly valuable is the centrality of obligation in shaping the understanding of working time, not least because less active or visible responsibilities emerge as significant dimensions of the worker’s presence.
The Employment Appeal Tribunal sketched a structure for an obligation-oriented analysis — a multi-factorial approach that is particularly useful for conceptualising work in the care sector. It provided a list of potentially relevant factors, none determinative and of varying weight depending on the facts. All relate to the nature and degree of a workers’ obligation: the employer’s purpose in hiring the worker, including any relevant regulatory requirement (e.g. care standards that require the continuous presence of a carer); the restriction on the worker’s activities by being at the disposal of the hirer; the degree of responsibility, including whether the worker can be sanctioned for leaving the premises; and the immediacy of the requirement to provide services, such as whether it is the worker who is the ‘first responder.’
Combatting temporal casualisation in the post-lockdown era
In Mencap and Uber the archetypally enduring — care work — and the unevenly novel — platform work — have converged. The Court of Appeal’s analysis has diverged for different genres of vulnerable time. The Uber judgments have — so far — sidestepped the productivity regulation paradigm. The Court of Appeal decision in Mencap has been contrastingly deficient, destabilising a protective case law, absorbing productivity regulation, and unleashing it on the care sector to curb waged time. This divergence extends a critical opportunity to the Supreme Court to choose how to conceptualise working time in the post-Covid labour market and the role of labour law in regulating this terrain.
My holistic reading of Mencap and Uber has also exposed fractures in how the UK regulatory framework has helped to prompt and sustain casualisation. The almost-scripted juxtaposition of the Court of Appeal judgments in Uber and Mencap showcased the gendered dimension of the creeping time-drainage that has become characteristic of the UK economy. The decisions as they stand risk heightening the sectoralised, and therefore gendered, temporal regulation of the UK labour market. In the slipstream of the Court of Appeal’s judgments, one casualisation strategy is being averted, while another — most redolent of female-dominated occupations — is tolerated. This outcome exacerbates the sectoral mistreatment of the care sector that Hayes has identified, which is, equally and predictably, gendered. This insight into the gendered dimension of temporal fragmentation could usefully be integrated more broadly into scholarly analyses of casualisation, including to resist explorations of the casualised labour market — or the ‘gig economy’ — that have an unbalanced focus on male-dominated jobs.
The judgments in Mencap and Uber will have profound ramifications, either accelerating or slowing the casualisation of the UK labour force that marked the pre-pandemic era. Excising genres of slack time from legal protection is inherently dangerous. Periods of ‘availability’ are difficult to distinguish from other varieties of slack time. There is no particular reason for notions of non-productive time to be confined to either private hire drivers’ waiting periods or care workers’ overnight shifts. Once unleashed, legalised conceptions of availability are at hand for further attempts to drain time from the working day. These notions can undermine working time limits, rest periods, leave entitlements, and minimum wage laws (by generating insufficient waged-time to secure a decent living). It is therefore to be hoped that the Supreme Court will sustain and reinforce the unitary model in Uber and overrule the Court of Appeal in Mencap.
When we emerge from the coronavirus pandemic and — we must hope — reconsider the treatment of lower-waged workers, stemming and reversing casualisation will be critical to restoring the coherence and stability of working class lives. The pandemic is providing a painful opportunity to reflect upon precariousness in the UK labour force. If this crisis is to be a catalyst for change, the Supreme Court has been given the opportunity in Mencap to take the first step.
*Deirdre McCann is a Professor of Law at Durham University, UK.
The Project on Decent Work Regulation (DWR) responds to UN Sustainable Development Goal (SDG) 8: inclusive and sustainable economic growth, employment and decent work for all. To achieve these objectives, effective labour regulation is crucial. The project supports a set of linked research and policy activities towards understanding and improving labour market regulation across the world. It can be followed on Twitter at @UnacceptableFoW.
