Mencap v Tomlinson-Blake: a disaster for the sustainability of social care?

An edited version of this post appears in Green’s Employment Law Bulletin (2018) Issue 147

12 Oct 2018|Comment

Lydia Hayes

Professor of Law, Kent Law School

The decision of the Court of Appeal in Mencap v Tomlinson-Blake has overturned a decade of progressive decisions at the EAT and removed minimum wage protections from care and support workers on sleep-in shifts. It may be that Lord Justices Ryder, Underhill and Singh thought their ruling would do the industry a good turn. Yet their decision puts the sector even further away from the position it desperately needs to be in, that of being able to offer decent jobs and to stem the growing exodus of its workforce.

The sector is awash with conferences, reports, speeches and think-tank events designed to grapple with the thorny problem of how to recruit and retain care workers, how to incentivise care work, how to create career structures. One can well understand that those concerns are frantic. Labour turnover rates are now at 34% a year, the highest of any sector in the UK by a large margin (Skills for Care, 2017). Nearly half (43%) of all workers providing care to vulnerable adults at home are quitting their jobs after less than a year of service and this is a particular worry since homecare is the sector’s largest and fastest growing occupational group. Labour turnover statistics speak to the reality that a huge proportion of people who want to be care and support workers, those who go to the trouble of providing life-sustaining assistance to others, are deciding that the job is simply unacceptable. Removing their minimum wage rights makes this problem worse, not better. Work by Fudge and McCann for the International Labour Organization (2015) has identified the attributes of unacceptable work and was applied by Sara Charlesworth and I in our comparative research about care work in the UK and Australia (2017). We found 11 of the 12 characteristics of unacceptable forms of work present in UK social care. Key dimensions were deficits in income, employment insecurity, excessive working time, disregard for health and safety, lack of representation and voice mechanisms, insufficient social protection, disrespect for equality, human rights and dignity, inferior legal protection, negative impacts on family and community life, and poor work organisation.

Affordability concerns and the problem of ‘work’

Since the 2017 decision at EAT to acknowledge Claire Tomlinson-Blake was ‘working’ during sleep-in shifts for the purpose of minimum wage, an elusive figure of £400 million in collective liabilities across the sector had been widely bandied about (elusive because the research on which this figure is based was privately commissioned and is seemingly inaccessible). In November 2017, the Government responded to employer pressure over the weight of these wage liabilities by establishing a special minimum wage compliance scheme by which social care employers could avoid fines and delay repayments of wages until March 2019 in return for declaring underpayments in the meantime. The purpose and logic of that scheme is now in disarray and matters will not settle down for some time yet; assuming that the Supreme Court grants permission to proceed to a further appeal.

It is worth recalling the EAT stage of a prior case concerning the minimum wage rights of a care worker, Walton v Independent Living Organisation. In that decision, Justice Holland put on record the likelihood that statutory pay protection for overnight hours would price sleep-in care provision out of the market. When Walton proceeded to the Court of Appeal, the claimant was found to be engaged in ‘unmeasured’ work. It meant her wage protection entitlement was lawfully restricted by a daily average agreement to just six hours and 40 mins of paid time per 24 hour shift and thus the payment per hour issue faded away. Nevertheless, fifteen years on the reasoning in Walton has been resurrected in Mencap. Accordingly, the duties of care workers do not constitute ‘work’ for the purposes of minimum wage protection during all the hours in which an employer requires them according to their contract. For statutory wage protection, duties are ‘work’ if they involve some form of one-on-one physical contact with a vulnerable adult, but during periods when the duties are to stay on site to watch out, listen out, wait for and be there just in case, these are not ‘work’ if the worker is permitted to sleep (or “expected to sleep”, as per the words of the Mencap judgment). This may sound comparable to an assertion that a firefighter only ‘works’ while putting out a fire. Nevertheless, it is a view of care work that was adopted as a background assumption in Mencap and fitted well with the Court of Appeal’s juriprudential strategy. Lord Justice Underhill drew upon the authority of a twenty-year-old report of the Low Pay Commission to find it had always been a ministerial intention that care workers should be excluded from minimum wage protection for time work or salaried-hours work during ‘sleep-in’ shifts in residential homes. This is problematic, not least because the care sector has changed a great deal in the past two decades and the bulk of its workforce, like those who work for Mencap, are not located in residential homes.

Adding insult to injury

The injury of erasing the estimated £400 million in wages owed to care workers in Mencap is compounded by the judicial insult of having done so doing on grounds that ‘sleep-ins’ are not ‘actual work’. Try explaining that to an exhausted care worker who is contractually bound to remain at her clients’ home to protect their health and safety overnight while someone else looks after her children. Support workers of the sort who work for Mencap are professionals who enable vulnerable adults with intellectual disabilities to live as independently as possible. Being independent, those adults don’t go to bed at a set time, they exercise choices, watch movies, listen to music, want to talk, play drums or computer games etc. Support workers make those choices possible, they most often work alone on very lengthy shifts, and the people they protect have extremely complex needs. These workers now face the consequences of a ruling which finds they are merely ‘available for work’ despite fulfilling duties to which they are contractually bound because their employer must fulfil the obligations of a service delivery contract and care plan requiring someone to always ‘be there’. Moreover, Mencap included the conjoined appeal of Shannon v Rampersad and on the facts, the Court of Appeal could not detect ‘work’. Mr Shannon’s job as an on-call night care assistant required that he move into an on-site flat at a residential home to fulfil a contractual requirement to be there from 10pm – 7am for 365 days a year. These duties arose because his employer had a legal duty to ensure that at this residential home, as well as at a residential home located opposite for which Mr Shannon also carried responsibility, ‘sufficient numbers of suitably qualified, competent, skilled and experienced persons’ are deployed at all times (Regulation 18, Health and Social Care Act 2008 (Regulated Activities) Regulations 2014). In the opinion of Lord Justice Underhill, ‘I cannot see that [the presence of statutory obligations] assists on the question of whether he was actually working or available for work’. Consequently, the Court of Appeal found that Regulation 16 of the National Minimum Wage Regulations 1999 ought to be applied such that Mr Shannon’s deployment was only covered by minimum wage protection for hours when he was required to assist in the event of an emergency.

The immediate consequences of Mencap for care and support workers

In July, when care and support workers received their pay slips, several discovered that their wages were a couple of hundred pounds light because hourly pay for sleep-ins had been stopped by their employers without any consultation at all. During August, others have been told they need to work unpaid during day shifts to ‘give back’ the hours they have previously been paid for sleep-ins. Further, some workers with the relative security of a guaranteed hours contract (rather than zero hours) have been informed that time spent on ‘sleep-ins’ no longer qualifies as paid working time. For sure, such poor employment practice is not caused by Court of Appeal judgments and a carefully reasoned decision, however popular with employers, provides no excuse to ride rough-shod over the few legal entitlements that care workers retain as parties to contract. Or does it? In my book, Stories of Care: A Labour of Law (2017) I show that law, both statutory and judge-made, provides a system of reasoning which underpins the persistent social judging of care workers as inferior participants in the labour market. I call it ‘institutionalised humiliation’ and juridical decisions which exclude care workers from the scope of legal protection (whether in relation to minimum wage, equal pay, contractual protection, or what have you) are an inseparable component of the poor treatment, low pay, insecurity and virtual invisibility of care workers in public life.

Finding a remedy

What is urgently needed following the decision in Mencap v Tomlinson-Blake, is for the Supreme Court to step-in and re-assert the prior findings of the EAT, that workers on sleep-ins are engaged in ‘work’ and therefore have the protection of the statutory minimum wage. This is variously for reasons of health and safety, for the satisfaction of care standards, for the protection of choice, in recognition of the huge responsibility that care and support workers carry, and for the promotion of independent living. In a sector which is unsustainable because it cannot retain its workforce, minimum wage rights provide recognition that care work has value and are an essential tool for supporting the creation of decent jobs for the future.