The weaknesses in the law that just allowed employers to pay care workers less than the minimum wage

The Supreme Court decision in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersand & Another (T/A Clifton House Residential Home) [2021] UKSC 8 (Mencap) can only be described as a bitter blow to low-paid, hard-working care workers who have been at the forefront of the most essential work during the ongoing global pandemic. In emotional terms it is hard to comprehend how such workers can feel anything other than betrayed and devalued as a result. The decision is, in the context of the great efforts by these workers, quite simply crushing. In labour rights terms, the Mencap decision generates real concerns in respect of the contribution the decision makes to fragmenting a basic minimum labour standard – the wage floor. A central concern is the approach taken by the Supreme Court to the concept of time to be considered working (work time) in relation to the National Minimum Wage (NMW).

Labour rights concerns: the fragmenting of work time

The Supreme Court ruled that a worker undertaking a sleep-in is not entitled to the protection of the minimum wage for their entire sleep-in shift. Rather, the worker is only entitled to have time they are considered ‘awake for the purposes of working’ included in any calculation of minimum wage compliance in respect of their pay. This means that workers will be undertaking what many people are likely to consider work and not be entitled to be paid at least the minimum wage for it. This includes situations, common place for sleep-in workers, where the worker is obliged to remain on site at the workplace at the employer’s disposal, serve a statutory function which permits the employer’s business to remain operational, and contribute to the labour saving practices of the employer.

How could such a situation arise? The answer in part lies in the structure of the National Minimum Wage (NMW) as a flawed labour protection. Under the National Minimum Wage Regulations 2015 (the 2015 Regulations) a worker may undertake various categories of work, and depending on how the work is categorised, different rules apply to determine how work time is to be treated for NMW purposes. In the Mencap case the claimant, Ms Tomlinson-Blake, undertook care work in the day which was categorised as ‘salaried hours work’, and she also performed sleep-in work overnight which was categorised as ‘time work’ under the 2015 Regulations. How the sleep-in time is treated for calculating a worker’s entitlement to NMW for this period depends on how the sleep-in is viewed. If the sleep-in shift is considered to be work the entirety of the hours of the sleep-in must be included in the pay period compliance calculation under Regulation 31, because the worker must be paid for all said work at a level at least commensurate with the minimum wage over the pay period. If, however, the worker is deemed during this period as merely available for work then an exemption applies under Regulation 32(2). In these circumstances, the worker is only eligible to be paid under the legislation for the time spent awake and deemed ‘awake for the purposes of working’. In practice this would mean that only part, and potentially none, of a sleep-in shift would be included in the national minimum wage compliance calculation for the pay period.

This use of the concept of ‘available for work’ in NMW protection creates a grey area, an interim status between work and rest which leaves workers vulnerable and subject to the vagaries of judicial interpretation. At the heart of the problem is the way time is constructed for the purposes of work, a matter fundamental to worker protection (this issue is also explored in Deirdre McCann’s excellent work here on temporal casualisation). This is because of the creation of a faux distinction between hours actually worked and hours worked subject to NMW regulation. Thus, as noted by the Supreme Court in their analysis of Regulation 17, the NMW is calculated on the basis of the hours worked or ‘treated as worked’. According to the Supreme Court, the use of the word ‘treated’ indicates that a ‘counterfactual situation may arise’ whereby ‘there will be occasions when hours are not treated as hours worked for the purposes of the regulations even though a different number of hours might have been determined to be worked in the absence of that provision’. This means, as a result, that there can be periods of time undertaken by a worker, under the control of the employer, which are not subject to minimum wage protection. It is a fundamental and major weakness of the regulatory framework that elements of work time can be excluded from protection in this way.

In addition to the legal framework creating the possibility for time spent at work not to be subject to minimum wage protection, another factor is how that legal framework is interpreted by the courts. As a result, the Supreme Court’s reasoning in relation to how the purpose of the sleep-in should be constructed was also crucial in determining the overall outcome of the Mencap case. The Supreme Court, like the Court of Appeal below, viewed the purpose of the sleep-in as being to sleep. It appears beyond the contemplation of both Courts that sleep could ever be considered work. The finding that a worker cannot be working for NMW purposes ‘if the arrangement is that he is to be present and sleep on the premises during his hours of work subject only to emergency calls’ appears to overlook the function of the sleep-in as described by Ms Tomlinson-Blake (and found as a fact by the Employment Tribunal as Lydia Hayes notes here). She was to provide a ‘listening ear’ and required to use her professional judgment to determine when she should intervene in an incident to provide support, and when it was appropriate for her to simply monitor a situation. This reasonably means that there would potentially be incidents where the worker would be awake and monitoring the situation, and determining whether or not her intervention was appropriate or required. In any event, as a matter of common sense, how could such a listening ear be maintained while deeply asleep?

Great emphasis is placed on the first Low Pay Commission reports where a sleep-in or ‘sleepover’ is ‘where a person stays overnight … and is not expected to be woken except in an emergency’. However, Ms Tomlinson-Blake’s case was that there was an expectation beyond this. If the construction of the sleep-in was based not on an understanding of what may have been the situation 20 years ago but on the facts of the case in question, we can see how the approach of the Court could have differed. If the sleep-in is viewed as a shift where the worker facilitates independent living for vulnerable people, we would see that in the absence of the worker and their work (rather than their availability for work), the goal – independent living – could not be achieved. Additionally, if the only or even main purpose and expectation of the sleep-in was that the worker would be fast asleep then the idea that this must be performed at the workplace and that the worker cannot leave the premises under any circumstances seems somewhat illogical. The requirement that the worker remains on site, and is not permitted to leave, strongly indicates that there is a more fundamental importance to the activity.  Nevertheless, the Court also rejects as not relevant that in many instances the presence of the worker enables the employer to fulfil or discharge statutory obligations. The basis for this rejection appears to be that the NMW does not ‘depend on the terms of a contract between private parties’. However, this misses the point. The issue was not one of contractual obligation between two parties, but statutory duties owed by the employer under the Care Act 2014.

More crucially, however, the mere presence of the worker is required to enable the employer to remain operational at all in such circumstances. Additionally, a question is raised as to what significance ought to have been put on the fact that by calling it a ‘sleep-in’ the employer is able to place the shift between two day shifts and thus save labour costs by engaging the same worker continuously for up to 30 hours? The Employment Tribunal, confirmed by the Employment Appeal Tribunal,  found as a fact that Ms Tomlinson-Blake typically worked a day shift, followed by a sleep-in shift, followed by another day shift. Presumably, the employer could have assigned further active tasks but may have chosen not to do so because this would have quite evidently required greater staffing provision. Instead, reliance is placed on a sleep-in shift which facilitates the employer only employing one staff member to be on duty for up to 30 hours continuously. Evidently this would not be possible if the worker was not permitted to sleep at all. UNISON research found 67% of sleep in workers report being exhausted, suggesting that despite the description, they are not able to sleep very much. The effect, however, is financial savings for employers in relation to staffing costs.

The consequence of this ruling in practice is to splinter an eight or nine hour sleep-in shift into fragments of time which may be reckonable for minimum wage purposes. In many ways, the reasoning of the Supreme Court reflects prevailing practices where we see work time increasingly broken up and work constructed narrowly in exclusively economically productive terms, too often at the cost of workers’ rights and dignity. Time is fragmented and reconceptualised so as to remove it from the scope of key labour protections such as minimum wage which is being increasingly used as a ceiling rather than a floor. And this ceiling is in turn seen as something to be limited in application. These issues are perhaps sometimes considered to be the preserve of newer platform-based sectors and the so-called gig economy. However, cases like Mencap highlight that the underlying work practices extend beyond the gig economy and either infect or underpin attitudes to labour protections more widely, including in the public sector and essential front line services.

Practical concerns and the impact on wage floor compliance 

In addition to these substantive concerns there are also practical concerns. A compelling critique in relation to this is put forward by Christina McAnea, General Secretary of UNISON, the union which supported Ms Tomlinson-Blake’s case. She raises questions about the practicality of implementing the decision. Precisely how are workers to document their time awake and time deemed working or available for work?  What constitutes such time?

For instance – a worker is only to be considered available for work if she is awake for the purposes of work. But what does that mean in real life, day to day terms? Clearly the time from being awoken (assuming she was able to sleep whilst carrying out her ‘listening ear’ task) and physically attending to a person and providing care would appear to be work. However, what about the time spent (perhaps lying back-down in the camp bed provided next to the photocopier in a cupboard or an office as vividly described by the UNISON General Secretary) unable to sleep while thinking about what had transpired, how the person might be better supported, or how the issue which demanded attention could be prevented in future? How is this time to be measured? Is it work? Is it being available for work? Is it being awake for the purposes of working? How is it to be recorded? In reality, this means both that there is likely to be dispute about what is meant by ‘awake for the purposes of working’ and thus reckonable, and also a dispute around recording and documenting of these periods of time.

For workers such as Ms Tomlinson-Blake this will be complicated enough – as noted above she is categorised under the legislation as performing salaried hours work for her day hours and time work for the sleep-in shifts. This means that either she or her employer (or both) will be required to find some way of determining and documenting (a) when she works or is available for work; (b) if she is available for work, when she is awake for the purposes of work during the sleep-in shift (as this will entitle her to payment of at least the minimum wage for this time); and (c) when she is awake but not for the purposes of work or available for work (for which she will not be entitled to payment of at least the minimum wage for this time). Adding to the complexity, not all care workers are salaried workers during the day. The day work may also be time work. For workers who are time workers in respect of their day duties as well as the sleep-in work, this is likely to lead to increasingly complex pay calculations. This is because for these workers, the pay for the pay period will be divided by all the hours reckonable in the pay period (not necessarily all hours worked) to ensure an average overall payment at or above the minimum wage per hour for the purposes of wage floor compliance.

For workers who only undertake time work (day and sleep-in) the Supreme Court ruling means that all of the day-hours of work, and only the sleep-in time where the worker is deemed ‘awake for the purposes of working’, will now be factored into their pay calculation rather than all of the day-hours and all of the hours spent undertaking sleep-in duties. These time workers may not in real terms earn anything now from sleep-in work if their day rates (often set slightly above NMW) sufficiently subsidise the sleep-in work they are deemed to have undertaken. As a result, one important unintended consequence of the ruling may also be to impact these compensating higher day rates, which may now be seen by employers as less necessary. The decision could thus have even wider implications for the wages of low-paid workers. And apart from the pay implications, all this adds even more to the complexities around what time qualifies in practice, record keeping and calculation. It also raises a real concern about replication of problems seen in the home care sector where workers’ active care time attracts an elevated hourly rate and specific provision is not made in respect of payment for travel and waiting time on the assumption that this will be addressed in compliance terms by the elevated care hours rate.

Such systems and assumptions have been shown in recent years to be increasingly compromised by the impact of austerity, public sector budget cuts and privatisation and NMW non-compliance is widespread. This also creates situations where workers are even more vulnerable to exploitation by unscrupulous employers. It has been noted by Virginia Mantouvalou in her important work on structural exploitation how the regulation of these workers’ working time is one of the factors which ‘create[s] the conditions for care workers’ vulnerability, which is systematically exploited through the payment of below-minimum wages’. Even those employers who do not seek to be unscrupulous face the pressure of the risk of non-compliance with the wage floor due to underfunding and may seek to resolve the issue by removing elements of ‘work’ from the calculation by attempting to recategorise it as ‘non-work’ time in order to reduce the wage bill. Weak enforcement and the vulnerable status of low-paid workers exacerbate this. Where there is poor record keeping (something which is all too common in the home care sector) this creates further complexities which place significant barriers between workers and their ability to enforce their rights.

The broader rights context

It is in this regard that the Supreme Court’s decision and its likely contribution to the ongoing fragmentation of work time is deeply concerning. We are likely to see more situations – as we do with home care workers – where workers may be continuously working and yet work time is constructed for the purposes of minimum wage so that they are only deemed working for certain purposes for part of that time. That is to say workers have to work longer, for less. The Supreme Court decision is a gift to the political architects of labour deregulation whose model is not to remove rights but to strip them of their worth. This is why it is important to see the issues raised by the judgment in the broader rights context. The decision at its heart is about attitudes to work and the construction of the meaning of work time. The issue at stake is one of basic social justice. Why should a worker be required to be present, available to immediately respond to the employer’s needs, be subject to disciplinary action for any perceived infractions, facilitate the employer’s operation, labour planning and savings and yet, not be entitled to at least have such time factored into their minimum wage compliance calculation? Why should such a burden be borne by the low-paid worker? What equivalent burden is borne by the employer? If this is permissible for care workers, providing statutorily regulated care, caring for some of the most vulnerable members of society, then why not other workers as well?

Arguments are made by employers and by local authorities that the issue is not a lack of value in the work done or indeed in the workers undertaking the work but rather points to the big crisis at the heart of social care – chronic and long-term underfunding. However, this problem of funding exists precisely because the work and thus the workers are not valued enough to adequately fund it or them. It speaks to the values placed on the work of care, the workers and care recipients by society. In this sense, bleak as the judgment is, it highlights now more than ever at a time when care workers are instrumental to the ongoing functioning of society in its moment of crisis that a period of hard reflection must follow the Supreme Court’s ruling. What do we value as a society? What are our values as a society? This is about our attitude to work, the value of work, our tolerance for fragmentation and ultimately our tolerance for labour commodification.

One argument being advanced in the aftermath of the judgment (and also before) is that the law needs to change. Although such calls appear well-founded, careful thought needs to be given as to what that actually means. In what way should the law be changed and based upon what underlying principles and values? We see lots of talk of post-pandemic recovery plans and returns to (the new) normal. This perhaps generates the scope for consideration of what that means in practice, in the context that we are in – both in terms of the pandemic and labour practices. A recent crisis was of course the 2008 financial crisis. The response to that was austerity. An austerity which has led to funding decisions, labour practices and conceptualisation of concepts of work as showcased by the Mencap decision. If that decision now offends us, feels uncomfortable, then that confirms that further austerity cannot be the answer. When considering fundamental issues of workers’ rights, dignity and fairness we need to go back to fundamental basic principles. As such, perhaps it is necessary to go back to another crisis, also on a global scale – the Second World War and revisit the proposals and settlements for post-war rebuilding.

The International Labour Organisation’s Declaration of Philadelphia of 1944 sets out a post-war recovery vision for workers founded on the basic and key concept that ‘labour is not a commodity’ and that ‘poverty anywhere constitutes a danger to prosperity everywhere’. That is to say, sub-minimum wages, poverty pay, must concern everyone. The Declaration of Philadelphia sets out a vision of social justice requiring policies relating to wages, earnings, hours and conditions of work that must be calculated to ‘ensure a just share of the fruits of progress … A minimum living wage to all employed and in need of such protection’.

Changes to the law and any post-pandemic recovery vision should therefore embrace and be based upon these foundational international labour rights principles. In thinking about the vision of the Declaration of Philadelphia it is also important, however, to recall that the Mencap case concerns the minimum wage, not a minimum living wage. Furthermore, the decision is the consequence of practices, increasingly normalised by decisions like this one, which see the wage floor being applied as a ceiling by employers. When utilised as a ceiling, the legislative framework permits the fragmenting of the concept of work time in order to limit its application. In this sense, the outcome in the Supreme Court serves as an important reminder to workers and their unions that the minimum wage can never be the end goal. Of course, fair, just and correct application of the wage floor is important. But it needs to be just that. A floor.

While the Supreme Court decision may permit in strict legal terms the non-payment of minimum wage for time which many people would consider to be work it also does not prevent payment or pay settlements in excess of that minimum. This is the challenge for unions representing care workers and other workers impacted ahead. Calls for legislative change and litigation of individual cases are only some of the tools available to workers seeking to secure their just share. In addition to providing a framework for considering legislative change, the Declaration of Philadelphia also reminds us that workers’ rights are best secured through collective means with ‘effective co-operation of management and labour in the continuous improvement of productive efficiency, and the collaboration of workers and employers in the preparation and application of social and economic measures’. Further, there is a demonstrable link between lower wage inequality and higher rates of collective bargaining. The challenge for employers and the government therefore is this – if workers and their work are valued, particularly those who have given so much in the face of the pandemic, then what is the plan for demonstrating that to working people? In the absence of a fully nationalised social care service and thus collective bargaining between the local government employers and workers then perhaps a tripartite model of collective bargaining should be explored – workers, government (as funders) and employers.

Either way, workers must be given an equal say and bargaining power in order to secure their ‘just share’.