Discrimination by Legal Design? UK Supreme Court in Mencap v Tomlinson-Blake Finds Care Workers are Not Protected by Minimum Wage Law for Sleep-in Shifts

Abstract

In Mencap v Tomlinson Blake the Supreme Court finds that the UK’s statutory national minimum wage scheme excludes care workers from protection during sleep-in shifts. UK employment rights thus move further from international labour standards, including ILO Convention 189. This commentary argues that Mencap points to discrimination by legal design. The Supreme Court gives expansive and uncritical regard to the wording and circumstances of a 1998 Low Pay Commission report that recommends residential care workers be excluded from protection as a ‘special treatment’. It shows that care workers’ entitlement to statutory protection is dependent on their contractual arrangements and does not consider inequality of bargaining power. The judgment erases caring labour of its cognitive and professional skills and puts care workers at a particular disadvantage. The care sector is notorious for the poor functioning of its labour market as well as for low pay. Care workers are mainly women and are disproportionately black and minority ethnic women. The discriminatory intent of Parliament, as explored by the Supreme Court in Mencap, reveals that the UK’s statutory minimum wage scheme is currently unable to provide workers with the dignity that would come from assigning a minimum value to the full range of care work.

1. INTRODUCTION

Representations made to the UK Supreme Court (UKSC) in Mencap v Tomlinson-Blake marked the first time that the UKs highest court had considered entitlement to a statutory minimum wage.¹ The case concerned the application of minimum wage protection to the hours two care workers were required to be at their places of work on overnight shifts that had a distinctive characteristic: it was expected the worker would sleep during the shift, unless disturbed. The UKSC found that the effect of regulation 32 of the Minimum Wage Regulations 2015 (and of its precursor, regulation 15 of the Minimum Wage Regulations 1999) is to exclude from minimum wage entitlement all the hours during which a worker on a sleep-in shift is permitted to sleep, unless they are awake for the purposes of working. Accordingly, in the presence of an arrangement to sleep, it is not open to a tribunal or court to find that a worker is ‘working’ when they are expected to sleep. The UK has not ratified the ILO Domestic Workers Convention 2011 and, prior to Mencap, academic commentary noted that UK employment law fell short of Convention requirements and exhibited a reluctance to provide parity of protection to workers in private homes.²Mencap appears to further distance the UK from international standards because the Convention requires that, ‘periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls shall be regarded as hours of work to the extent determined by national laws, regulations or collective agreements, or any other means consistent with national practice’.³

During the 13-month period between the hearing and the verdict (February 2020 to March 2021), there were over 100,000 deaths from Covid in the UK and the deceased were mainly older and disabled people. The initial period of catastrophe, known as the ‘first wave’, began just days after the hearing and 40% of all recorded covid deaths in the UK occurred among people who lived in care homes.⁴ Across the UK, a national campaign of appreciation, ‘Clap for Carers’ ran from 26 March to 28 May 2020 and, while in lockdown, people stood on the doorsteps of their homes to applaud, as a gesture of solidarity and thanks. I watched the handing down of the Mencap judgment live on Zoom with a small group of care workers and union organisers. On hearing the decision that working a ‘sleep-in’ shift was excluded from minimum wage protection, their shock, hurt and anger was palpable. In the context of a year in which the care workforce had given so much and endured such tragedy, they were in a state of disbelief to hear the court determine that statutory wage protection had been designed to prevent the right to minimum wage from adhering throughout the duration of their sleep-in shifts.

As Kate Ewing explains, notwithstanding the issues explored in Mencap, the contractual organisation of employment in the care sector makes it difficult for workers to evidence all the hours that are eligible for inclusion in minimum wage calculations and thus hampers care workers’ ability to rely on minimum wage protection.⁵ The decision in Mencap further erodes hope of a correlation between minimum wage protection and the actual time taken to fulfil duties in care work. In a sector notorious for low pay, the right to minimum wage protection is now especially weak.

In her delivery of the lead judgment in Mencap, Lady Arden explained unequivocally that the decision was a matter of statutory interpretation rather than a reflection of ‘any preconception as to what should entitle a worker to a wage’.⁶ Hence, my analysis draws attention to the interpretative approach of the UKSC in this case. I argue that a judicial focus on deductive logic and the merits of certainty neglects regard for the substantive content of minimum wage provisions and eschews consideration of the relevance of minimum wage protection to the contemporary organisation of care work. Connor Gearty has observed that, in the era of Lord Reed, decision-making by the Supreme Court is ‘rooted in legal formalism, an extremely narrow reading of the rule of law, while displaying an old-school lack of interest in the lived experiences of those whose plights have brought them to the judges’ attention’.⁷ In Mencap, UKSC acknowledges the minimum wage as a market corrective, yet does not engage with that which may need to be corrected in the labour market for care. It declines to acknowledge the purposive values underpinning the statutory protection of pay and does not weigh the difference in bargaining power between care workers and their employers. Rather, UKSC chooses to dogmatically adhere to historical advice from the Low Pay Commission, advice that is arguably discriminatory. The regulatory underpinning of the minimum wage is found to exclude the work of care by legal design. The reasoning in Mencap erases care work of cognitive and professional skills and provides further evidence to support the push for forms of sectoral collective bargaining to be introduced across the social care sector.⁸ There is an urgent need to correct the undervaluing of care work in the UK. As exemplified by the ILO Domestic Workers Convention, there has been international progress on recognising care workers’ rights.⁹ Yet the decision in Mencap extends, rather than addresses, the lack of protection currently afforded to care workers in UK employment law.

2. THE FACTS

Tomlinson-Blake was a care worker for young disabled adults who required 24-hour support to live independently in their own homes. She was employed by the respondents, Royal Mencap Society, a charity operating residential care homes and providing community-based services to support disabled adults. In 2019/2020 commercial contracts with local and national government for the provision of care and support services contributed £179 million to the charity’s £220 million annual turnover.¹⁰ The provision of state-funded care and support services thus comprised the lion’s share of the organisation’s activities. In Tomlinson-Blake’s case, it was the legal duty of East Riding Yorkshire Council to ensure that the care needs of the disabled adults she was employed to care for were met.¹¹ The Council contracted with Mencap to discharge this duty. Tomlinson-Blake was employed on a salaried basis for day-time working and she occasionally worked overnight on ‘sleep-in shifts’. On such occasions she was required to remain on site at all times and was permitted to sleep during her shift. The Supreme Court judgment noted her duties were to ‘keep a listening ear’ throughout the night and to attend to any emergency. In return for working a ‘sleep-in’, Tomlinson Blake was paid an ‘allowance’ of £22.35 per shift plus 1 hour of pay at the relevant rate of the National Minimum Wage, in recognition of the expected volume of ‘work’ in the shift. Accordingly, for the sleep-in shifts, Tomlinson-Blake was engaged in ‘time work’.¹²

Tomlinson-Blake asserted that the right to a national minimum wage protected her pay during all of the hours of her sleep-in shift because she was working throughout the shift. She brought proceedings to cover her wage arrears under the provisions of the National Minimum Wage Regulations 2015.

Shannon was an on-call night assistant employed at a residential care home. He was remunerated with free accommodation and utilities in the care home plus a £50 a week payment, which increased to £90 as the years of the employment arrangement unfolded. Accordingly, he was engaged in ‘salaried hours work’.¹³

Shannon was required to remain at the care home between 10 pm and 7 am and he was permitted to sleep. There was a night care worker on duty each night who could call on Shannon if help was required. Shannon lived at the care home and because his home was his workplace, he asserted that all his on-call hours should have been included in the calculation of his National Minimum Wage entitlement because he was on-call and ‘at work’ throughout the shift. He brought proceedings to cover wage arrears under the provisions of the National Minimum Wage Regulations 1999.

3. THE LAW

The National Minimum Wage Act 1998 provides a generic wage floor across all sectors of the economy on the basis of an hourly rate, set annually, that may vary only by the age of the worker.¹⁴ The mechanics of how protection would adhere to working time were set out in accompanying regulations issued in 1999 and replaced in 2015. Both sets of regulations provide minimum wage protection during periods when a worker is working, as well as during periods when a worker is required to be available for work. This is clearly intended to ensure minimum wage rights adhere during times when a worker is required yet their employer does not have work for them to undertake at all moments. For example, the first part of regulation 15(1) of the 1999 regulations states:

‘In addition to time when a worker is working, time work includes time when a worker is available at or near a place of work, other than his home, for the purpose of doing time work and is required to be available for such work...’

Regulation 32(1) of the 2015 regulations states:

‘Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working...’

However, both of the regulations quoted above also contain exceptions which limit the extent to which minimum wage protection adheres to hours when a worker is available for work. One is a home exception, which excludes time when a worker is available for work yet is at home. The other is a sleep exception, which excludes time when a worker is available and at work, but there is an arrangement or expectation that they sleep unless needed.

Prior to the advance of the Mencap litigation through the tribunals and courts, there had been a steady flow of decisions by the EAT on minimum wage entitlements during sleep-in shifts in the care sector. In some instances, the sleep exception had applied because the claimants were found on the facts to be available for work and sleeping by arrangement at their place of work. However, in other instances, the claimants were found to be engaged in time work and working. A definition of ‘time work’ for the national minimum wage scheme is set out at regulation 3 of the 1999 regulations:

‘work that is paid for under a worker’s contract by reference to the time for which a worker works and is not salaried hours work.’

And at regulation 30 of the 2015 regulations:

‘Time work is work, other than salaried hours work, in respect of which a worker is entitled under their contract to be paid— (a) by reference to the time worked by the worker; (b) by reference to a measure of output in a period of time where the worker is required to work for the whole of that period; or (c) for work that would fall within sub-paragraph (b) but for the worker having an entitlement to be paid by reference to the period of time alone when the output does not exceed a particular level.’

In the cases where care workers are found to be working rather than merely available for work, the legal significance is that the sleep exception is deemed irrelevant and not applied. The sleep exception is set out in the second part of regulation 15(1) of the 1999 regulations:

‘... except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours he is permitted to sleep shall only be treated as being time work when the worker is awake for the purpose of working.’

It is also set out at regulation 32(2) of the 2015 regulations:

‘... hours when a worker is ‘available’ only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.’

Without the sleep exception in place (and following Burrow Down Support Services v Rossiter and Inland Revenue v British Nursing),¹⁵ care workers on sleep-in shifts are recognised to be engaged in time work and entitled to minimum wage protection for the duration of their shift. The litigation in Mencap first came before the EAT in a case reported as Focus Care Agency v Roberts.¹⁶ In Focus Care Agency, Simler P found legal consistency in the assemblage of case law by creating a multi-factorial test to ascertain on the facts of each case whether or not a worker on a sleep-in shift is ‘working’. The outcome of this test would determine whether or not the sleep exception regulations ought to adhere. On the facts pertaining to Tomlinson-Blake, the EAT applied the multi-factorial test to find in favour of Tomlinson-Blake: she was working throughout her sleep-in shift. On the facts pertaining to Shannon, the EAT did not accept he was on-call at work, rather than at home and on the application of the multi-factorial test, Shannon was not working but available for work and therefore the sleep exception applied.

When the questions in Mencap came before the Court of Appeal, the multi-factorial test was overturned.¹⁷ The Court of Appeal replaced the need to ask whether a worker is ‘working’, with a bright-line test as to whether a worker is ‘expected to sleep’ for all or most of their shift.¹⁸ If answered in the affirmative, the Court of Appeal found the sleep exception must apply and pay protection is therefore limited to periods in which workers are ‘awake for the purposes of working’ and ‘required’.¹⁹ Lord Justice Underhill, presiding, explained that in 1998, government ministers had accepted a recommendation of the Low Pay Commission (LPC) prior to the drafting of the 1999 regulations. That recommendation was an important aid to interpretation and, ‘deals expressly with the case of workers who sleep-in in ‘residential homes’ […] which are essentially the kinds of case with which we are concerned’.²⁰ Underhill stressed it was, ‘of course obvious’ that the regulations setting out the sleep exception should apply in such cases.²¹ He cast doubt on the scope of the Court of Appeal in British Nursing,²² which had found that workers who were on an overnight shift at home and permitted to sleep during periods of downtime, were working throughout their shift. While he had ‘no problem’ with the reasoning nor the outcome of British Nursing, he expressed caution about the circumstances in which workers could reasonably be considered to be working.²³ Indeed, he opined the irrelevance of the fact that Tomlinson-Blake ‘had a listening ear’ since this would not affect an analysis of whether or not she was working.²⁴ The Court of Appeal in Mencap overruled the EAT in Burrow Down,²⁵ on the basis that the EAT had not considered the recommendations of the LPC, and had it so done would have concluded that being available for work and permitted to sleep necessitated the application of the ‘sleep exception’.

On appeal to UKSC, Mencap was presided by Lord Kerr.²⁶ He sadly passed away in December 2020, and the Court remained duly constituted with a panel of four, Lady Arden leading.²⁷

4. THE REASONING

In deciding that the UK’s statutory minimum wage scheme prevented sleep-in shifts from being protected as ‘work’, the UKSC agreed with the Court of Appeal, overturned the multi-factorial test in Focus Care Agency and declared Burrow Down to be wrongly decided. The judgment was intended to provide certainty where the prior case law had introduced, ‘a considerable amount of uncertainty into the national minimum wage rights of the sleep-in worker … [which was] undesirable and not in the interests of either party to the arrangement’.²⁸ The reasoning had three elements: firstly, the sleep exception expressly implements a recommendation of the Low Pay Commission; secondly, the exception must therefore be applied wherever there is an agreement to sleep during a shift; thirdly, any care worker on a ‘sleep-in’ shift is not working unless they are required to be undertaking duties and are awake for that purpose.

A. The Sleep Exception Expressly Implements a Recommendation of the Low Pay Commission

The UKSC’s justification drew strongly on the same recommendations of the Low Pay Commission (LPC) that had attracted judicial attention at the Court of Appeal. In 1998, the LPC published its first report, which included recommendation 12 for workers who were paid to sleep and literally bracketed off workers in residential homes for special treatment.²⁹

‘For hours when workers are paid to sleep on the work premises, workers and employers should agree their allowances as they do now. But workers should be entitled to National Minimum Wage for all times when they are awake and required to be available for work (para 4.34)’.

Para 4.34 explained:

‘Certain workers, such as those who are required to be on call and sleep on their employer’s premises (e.g., in residential homes or youth hostels) need special treatment’.

The UKSC noted the statutory requirement placed on the Secretary of State by s.5(1) National Minimum Wage Act 1998, to obtain the advice of the LPC in contemplation of minimum wage regulations on matters listed at s5(2). UKSC identified that the treatment of sleep-ins fell within the matter at s5(2)(c), namely the method for determining the hourly rate at which a person is to be regarded as remunerated for the purposes of the Act. Further, s.5(4) required, in the event of the Secretary of State deciding not to follow the LPC recommendations in respect of such matters, or to follow only in part, that he or she must lay an explanatory report before Parliament. On the premise that the Secretary of State had not taken such action (he had not informed Parliament that the LPC recommendation 12 would not be implemented), the UKSC decided that it must approach the relevant regulations as being intended to bring recommendation 12 into effect. This was the nub of the decision, yet the reasoning of the UKSC gave considerably heavier weight to the recommendations of the LPC than had the Court of Appeal.

Lady Arden stated the LPC report was more than just an ‘aid’ to interpretation, and elevated regard for the recommendations to a level of imperative, ‘because the government is bound to implement those recommendations unless it provides reasons to Parliament for not doing so’.³⁰ Further justification was inferred from the Court of Appeal in Walton v Independent Living Association, which accepts that recommendations of the LPC are implemented by the National Minimum Wage Regulations 1999.³¹ In Mencap, the UKSC states that the recommendations of the LPC show ‘the mischief to which the regulations were directed’, albeit the notion of mischief is not further explored.³² This points to a presumption about the correct construction of the regulations, namely that the intention of Parliament is ‘provided by the recommendations of the LPC’,³³ and that intent was for the sleep exception to apply to workers who are ‘paid to sleep’. This amplifies the legal significance of the relationship between the LPC and government ministers. The UKSC reasons it was Parliament’s intention for the LPC to identify the mischief or flaws in the overarching scheme, to which Ministers were directed to attend through creating regulations, albeit they could report to Parliament should they wish to divert from the recommendations of the LPC.

B. The Exception Must Therefore be Applied Wherever There is an Agreement to Sleep During a Shift

The proposition that ‘sleep-in shifts’ are subject to the sleep exception is addressed most clearly in the judgment of Lord Kitchin, who echoes the definition of a ‘sleep-in worker’ applied by the Court of Appeal:

‘a worker who is contractually obliged to spend the night at or near her workplace on the basis that she is expected to sleep for all or most of the period but may be woken if required to undertake some specific activity’.³⁴

Lord Kitchin accepts that ‘in some cases’ it might be helpful to ask whether a worker is actually working or whether they are instead available for work and, ‘if the answer to the second limb is “yes” then, subject to the exception for sleep-in workers, the time for which she was available for work also counts as time work’.³⁵ Indeed, he explicates the impact of the LPC recommendation on ‘sleep-in workers’:

‘In the case of a sleep-in worker, as I have defined her, the application of the exception in regulation 15(1) cannot be avoided by arguing that she was performing time work when she was permitted to sleep and was sleeping.³⁶

Hence, the sleep exception correlates to the contractual obligations defining a sleep-in and a court or tribunal cannot attach minimum wage obligations in such contractual circumstances. The collective judgment asserts that the relevant question is not whether the worker is expected to sleep but rather, ‘whether there is an arrangement under which he may sleep at or near his employers’ premises’.³⁷ It is therefore a formal matter of contract as to whether or not the sleep exception will apply to the work undertaken. Justification for affirming the dominance of contract over statutory right in respect of minimum wage for sleep-ins is found in the reports of the LPC. Lady Arden explains that in the second report of the LPC, which had not been considered by the Court of Appeal, the LPC had revisited its prior expectation of an ‘allowance’ rather than minimum wage entitlement and it stated:

‘If workers are contractually required to sleep on the employer’s premises, as opposed to choosing to do so, then that, including any payment made as compensation, is a matter for both parties to the employment contract.’³⁸

Lady Arden finds this compelling and, presumably to head off any potential critique about the potential for exploitation, she asserts that, ‘it was not the intention of the legislature that the employees should be unremunerated when they were on sleep-in shifts’, because the wording of the LPC report revealed that the intention of the legislature was rather, ‘that employees on sleep-in shifts should be remunerated in a different way (the agreed allowance)’.³⁹ However, in an article by economist and founding member of the LPC, David Metcalf, the LPC’s reference to an allowance is noted to have merely acknowledged, ‘there is nothing to stop employers from continuing to pay an allowance’, which very different indeed from any expectation and of course without requirement.⁴⁰ Further, in its second report, the LPC expressed concern about the ‘scope for employer abuse of sleepover practice’, and asked the government to issue specific guidance.⁴¹ This request was not actioned by government and the LPC continued to call for specific guidance in its fourth report in 2003.⁴² Despite the repeated failure of government to address the LPC’s concerns about scope for exploitation, the UKSC adduces that the fact of the absence of a call from the LPC for legislative change provides support for the Court’s proposition that the 1999 regulations implement the will of the LPC.⁴³

The significance is considerable. It follows that, however many times a sleep-in worker is woken to answer emergency calls, the whole duration of the shift cannot be included for NMW purposes.⁴⁴ It is only the duration of the sum of the periods of being awake and required for the purposes of working that is covered by minimum wage protection.

The authority of British Nursing v Inland Revenue is overruled because the Court of Appeal in British Nursing had not considered the first report of the LPC. All four of the Supreme Court Justices agreed that regulation 32, seen through the lens of the LPC recommendation, prevent a tribunal from finding that a worker on a ‘sleep-in’ shift is ‘working’ rather than ‘merely available’.

C. Any Care Worker on a ‘Sleep-in’ Shift is Not Working Unless They are Required to Undertake Duties and are Awake for That Purpose

The relevance of the exception to sleep-in care workers is affirmed by Lady Arden. She remarks that the LPC recommendation was ‘clearly geared to residential homes and hostels but the 1999 regulations when drafted were wide enough to include domiciliary care’.⁴⁵ This brings firmly into purview the circumstances in which Tomlinson-Blake worked, although without providing any detail to explain why the scope of the regulation is not limited by the words of the recommendation which it is deemed to implement.

On the application of the decision to the facts pertaining to Tomlinson-Blake, the UKSC determines that the sleep exception applies and, for the purpose of minimum wage protection, the number of hours she is recognised to ‘work’ excludes hours when she was permitted to sleep unless she was woken for the purposes of working. The phrase, ‘for the purposes of working’ attracts commentary from Lady Arden:

‘In this connection, the worker must have some duties to perform, such as helping with distributing breakfast to the residents of a home if requested by the day staff or waiting for a call to assist’.

The ‘work’ required for the purposes of minimum wage protection is thus physical, but Lady Arden expressly rejects the submission that Tomlinson-Blake was working by being present and listening out in order to determine whether or not her intervention was needed:

“I do not consider that having a listening ear leads to the conclusion that she was working for NMW purposes. A worker must travel from home to the employer’s place of business, but it does not automatically follow that the travelling time falls within the calculation of hours for the purposes of the NMW.”

The approach taken to the facts pertaining to Shannon follows suit, and the UKSC determines that Shannon is caught by either or both of the ‘home exception’ and the ‘sleep exception’ because, ‘he was only carrying out [work] when he was actually called on’.⁴⁶

5. SOME CRITIQUE

Sleep-in shifts are a routine feature of working life for many thousands of workers across the adult social care industry. Sleep-in shifts may be required of workers in residential care homes but they are also fundamental to the provision of 24-hour, or overnight, care and support for adults who live independently in their own homes in the community. Women comprise the overwhelming majority of the workforce meeting these needs.⁴⁷ It is relevant to the material significance of the case to note that the economic, social and political situation of women, as a social group, remains one of disadvantage to men and to recall that the undervaluation of caring labour is widely accepted to be a central pillar of that disadvantage.⁴⁸ Minimum wage law was not designed as an equality law but the low paid were, and continue to be, a majority female group.⁴⁹ A purpose of the statutory scheme, as explained by the Low Pay Commission,⁵⁰ and explicitly repeated in ministerial announcements, is to raise the pay of a cohort of workers across the U.K. economy who are majority female. While the Mencap ruling is of general application, it elucidates an exception that is focused on women workers in the care sector, a workforce that is disproportionately of Black, Asian and minority ethnic heritage,⁵¹ and are put at a particular disadvantage by the circumscribing of pay protection.

Lady Arden asserted that both the appeals are based on matters of statutory interpretation and should not be based on a preconception of what should entitle a worker to a wage. That is of course correct. However, statutory interpretation is not devoid of choice and outcomes are informed by the approach chosen. The question of what should entitle a worker to a wage is fundamental to the establishment of a statutory national minimum wage and could have been explored in respect of care work had the UKSC chosen so to do. Indeed, since this was the first case before the UKSC to directly concern the UKs statutory minimum wage scheme, it is surprising the opportunity was declined.

The UKSC decision in Mencap came just four weeks after its decision in Uber v Aslam on a question of worker status.⁵² In Uber, the UKSC affirmed that the ‘modern approach’ to statutory interpretation is to consider ‘the purpose of a particular provision and to interpret its language, so far as possible in the way that gives best effect to that purpose’.⁵³ It went on to recognise that the general purpose of legislation such as the National Minimum Wage Act is ‘to protect workers from being paid too little for the work they do’,⁵⁴ and it gave due consideration to the ‘unequal bargaining power’ that defines a contract of employment.⁵⁵ The Uber judgment drew on the work of Guy Davidov and Lord Leggatt consequently explained, ‘laws such as the National Minimum Wage Act were manifestly enacted to protect those whom Parliament considers to be in need of protection and not just those who are designated by their employer as qualifying for it’.⁵⁶

However, in Mencap, the purpose of the National Minimum Wage appears to have shrunk. Lady Arden explains, in sum:

‘The objectives of the NMW as a social and economic measure are no doubt complex. It clearly helps to redress the law of supply and demand where there may be market failure, and the worker is not able to obtain basic recompense for his labour, but there are no doubt other policy objectives which it serves.’⁵⁷

This perspective on the minimum wage as a market correcting device is observed by Zoe Adams to be grounded in neoclassical economics.⁵⁸ It views the purpose of the minimum wage as to settle imperfections in the wage balancing of supply and demand. Yet, even with this narrow perspective, the UKSC does not adopt a purposive approach and fails to consider the issue of market failure in the labour market for social care. For years, the sector has carried the highest labour turnover of any sector of the U.K. economy. Even prior to the catastrophe of the pandemic, there were 122,000 unfilled vacancies in England alone. The undersupply of services is chronic and Age U.K. estimates that well over 1.6 million older adults do not receive the care and support they need and 2,000 requests for support are declined every day.⁵⁹ Low wages are the cornerstone of the sectors’ demand and supply problems.

Further, the reluctance of the UKSC to engage with the purpose of minimum wage leads it to justify the exception, in the absence of justification for the existence of the right to minimum wage. Hence, with a focus on what is not, in place of what is, the judgment in Mencap separates wage protection from the notion of ‘work’:

… not all activity which restricts the worker’s ability to act as he pleases is work for the purposes of the NMW but that does not mean that it may not be work for some other purpose. However, that may be, the statutory question in these appeals is not primarily whether he is working but: how are his hours of work to be determined for NMW purposes? [my emphasis]

Implicitly, this recognition of ‘work’ that may not be ‘work’ for the purpose of wage protection, appears to remove the possibility that a purpose of the National Minimum Wage is to ensure that ‘work’ is recognised through the statutory assignment of a minimum value. If the UKSC in Mencap had chosen to turn to Davidov’s work, as it had in Uber, it would have noted his conclusion that the central purpose of the UKs National Minimum Wage Act is to establish worker dignity so that human labour is not sold for less than a minimum because labour is not merely a commodity.⁶⁰ Yet, by rejecting minimum wage as a reflection of ‘work’, the substance of the right to minimum wage falls back into contract as the lens through which wage protection is observed. Once again, this seems at odds with Uber, in which the UKSC recognised that worker vulnerability means relations cannot be solely left to contractual regulation and the ‘very fact that an employer is in a position to dictate contract terms’ gives rise to the need for statutory protection in the first place.⁶¹

Indeed, the manner in which reliance is placed upon the exercise of management prerogative to invoke the sleep exception is very concerning. The relevant factor for the exception from national minimum wage protection is the existence of an arrangement for the worker to sleep at or near the premises. It appears therefore that entitlement to national minimum wage protection becomes a matter of contract, absent due regard for the inequality of bargaining power which gives rise to statutory intervention. As ACL Davies identified in her commentary on Mencap at the Court of Appeal, it is unsatisfactory that the fact of being available to an employer, at a time and place and for a duration of the employer’s choosing, was not recognised as a recompensable commodity.⁶²

The introduction of a national minimum wage was a priority of Tony Blair’s first term as prime minister. New Labour was determined to introduce the statutory scheme on the basis of consensus and co-operation with employers, rather than conflict. In June 1997, the new labour government established the LPC and it got to work within 90 days of the election. The LPC carried responsibility for formulating proposals for the introduction of a minimum wage. At that time, it was well understood that New Labour was eager to protect the integrity of the LPC, to construct for it an aura of economic credibility and to recognise that perceptions of its ‘independence’ were a cause of ‘widespread satisfaction’.⁶³

By November 1997, the President of the Board of Trade was gushing about the success of the LPC consultation with industry, its affirmation of ‘no sectoral derogations’ and its proposals ‘to end poverty pay’.⁶⁴ Accordingly, the government would be able to launch a minimum wage based on a platform of legitimacy. Some 25 years later, this legacy of the LPC as the source from which the minimum wage draws legitimacy is carried forward into the judgment in Mencap.

The first report of the LPC defined the UKs minimum wage scheme as an initiative that would ‘make a difference to the low paid while minimising burdens to business’, it also said the minimum wage would reduce inequality of income between workers and minimise social exclusion, to create a greater incentive to work and to remove ‘gross exploitation’. Yet, the Low Pay Commission chose to single out residential care workers as requiring ‘special treatment’ within the scheme. As the UKSC has affirmed, such ‘special treatment’ is the sleep exception.

Accordingly, if care workers are ‘paid to sleep’ at the residence of a person who requires 24-hour care and support, their labour is regarded in the same way as that of a worker who is on-call and stays at their own home. The LPC offered no explanation as to why workers who physically ‘go out to’ work and are at their places of work in order to care, should be treated in law in the same way as those workers who are on-call and remain in their own homes. Yet, the UKSC did not probe the diagnosis nor the justification of the LPC for such special treatment. Perhaps recommendation 12 of the LPC could be regarded as indirectly discriminatory? If we were to follow the approach of the employment tribunal in Puthenveettil v Alexander, it could indeed.⁶⁵ The UKSC did not consider whether the recommendation of the LPC is incompatible with Article 157 TEU, despite the fact that it is women as a group who are put the particular disadvantage of exclusion from minimum wage protection when they work sleep-in shifts. The UKSC in Mencap gives no attention to the potential that the recommendation itself may be based on discriminatory assumptions about the labour of care and crucially, does not subject the LPC recommendation to any assessment as to the legitimacy of its aims and its proportionality in the furtherance of those aims.

The UKSC puts the weight of its judgment on the fact that the Secretary of State did not tell Parliament that he would not be implementing Recommendation 12. Nevertheless, s.2(8) National Minimum Wage Act 1998, explicitly prohibits the Secretary of State from making provisions that treat persons differently by sector of the economy or by occupation. If the sleep-in exemption was intended to preclude the possibility that a care worker is working for the purpose of minimum wage protection, the effect on the care workforce is one of differential treatment. The UKSC in Mencap does not provide a justification for its decision that the sleep exception has a blanket application to domiciliary workers when the recommendation clearly targets residential care workers. Widening the pool of exception, and making the exception a norm, does not make exclusion from national minimum wage protection less discriminatory. It is also uncomfortable that the UKSC finds that the minimum wage scheme was designed to exclude workers based on a contractual arrangement to sleep without engaging with the provisions of s.49 National Minimum Wage Act 1998, which void any contractual term that purports to exclude or preclude a person from bringing proceedings under the Act.

It is worth noting that the LPC has recently reported that the national minimum wage regulations are potentially discriminatory with regards the treatment of care workers in light of a separate provision that excludes them from protection.⁶⁶ Regulation 57 of the National Minimum Wage Regulations 2015 exempts ‘live-in’ workers from the right to minimum wage and has been found potentially discriminatory because it puts women at the particular disadvantage of being denied minimum wage protection. The LPC has recommended that the government act to remove the ‘live-in’ exemption on grounds it is unjustified.

The judgment in Mencap reveals a statutory minimum wage scheme designed to exclude. Its reasoning erases rather than explicates the paid labour of care. At first instance, the employment tribunal had specifically stated of Tomlinson-Blake’s work:

… the onus was constantly upon her to use her professional judgement and to use the detailed knowledge that she had of the needs of these residents to decide when she should intervene in order to meet their needs and when she should not in order to respect their right to privacy and autonomy. That epitomises her role as a carer.⁶⁷

The wording of the judgment in Mencap does not acknowledge the intellectual work of care and ignores the professional judgement, detailed knowledge of needs, decision-making and respect for privacy and autonomy that is noted above. This omission was purposeful and echoes a disregard for the work of care expressed in Walton v Independent Living Association.⁶⁸ The obiter in Mencap, that ‘a listening ear’ cannot constitute ‘work’, reduces the care worker to the status of a mechanical device such as a baby monitor – an unthinking receiver of sound. It is inconceivable that a court would regard the listening skills of a psychologist, an air traffic controller or indeed of a lawyer, as evidence of being ‘merely present’ and ‘not working’.⁶⁹

6. IMAGINING AN ALTERNATIVE INTERPRETATIVE APPROACH

It is reasonable to wonder if UKSC could have decided the case differently given the specificity of the statutory language at s5 National Minimum Wage Act 1998 requiring the Secretary of State to lay a report before Parliament if deciding not to follow LPC recommendations on a range of matters set out at s5(2), as well as the powers afforded to the Secretary of State at s2(3) to make regulations with respect to, ‘the circumstances in which, times at which, or the time for which, a person is to be treated as, or as not, working’. In my view, the UKSC could have interrogated more closely the scope of the duties at s5, with the possibility of deciding that the sleep-in recommendation of LPC did not fit within the list of matters at s5(2) and thus there may have been no duty on the Secretary of State to report to Parliament if he chose not to implement the recommendation.⁷⁰ It is notable that the s5 list of matters for referral to the LPC does not specify the matter of whether a person is to be treated as, or as not, working. Further, UKSC could have acknowledged that the powers to introduce regulations set out at s2 are constrained at s2(8) by the limitation that no provision be made which treats the same circumstances differently in relation to [amongst other things], different sectors of employment or persons of different occupations. In so doing, the UKSC might have exercised caution over the legitimacy of a decades old LPC recommendation that gave ‘special treatment’ to workers in residential care as an occupational/sectoral group.

It was open to the UKSC to recognise that ‘sleep ins’ are an inherent and essential part of the work of providing 24-hour care, and that such work then logically ought not to be categorised as a contractual duty that is not work. The UKSC might have noted that if an essential, contractually-binding aspect of 24-hour care can be categorised as not work, the likely effect is the facilitation of forms of contracting out that are prohibited by s48. Further, if the UKSC had weighed the inequality of bargaining power between workers and employers as it had in Uber, it may have recognised the purpose of statutory protection in restricting the ability of employers to establish ‘arrangements’ that put workers at the particular disadvantage of exclusion from wage protection. Finally, the UKSC could have recognised the discriminatory impacts of restricting minimum wage protection to a group of workers who are predominantly female and disproportionately of black and ethnic minority heritage.

7. WHAT NOW FOR CARE WORKERS?

Care workers and their unions are clear that it is unacceptable for sleep-ins, as an essential component of 24-hour care, to be excluded from minimum wage protection. It is for Westminster to respond as it sees fit, if at all and it is to be hoped the LPC will in future recommend the government act to remove the sleep-in exemption on grounds of potential discrimination. There is widespread dissatisfaction with the limited capacity of generic employment rights to provide an effective framework of labour standards in the care sector. The weakness of individual employment rights is one reason why the idea of introducing forms of sectoral collective bargaining in care,⁷¹ is taking shape in Wales and Scotland,⁷² and is currently proposed to be implemented UK-wide within 100 days of the election of a future Labour government.⁷³

Footnotes