A few weeks before the lockdown, one of the most important UK labour law cases of the last decade was heard by the Supreme Court. Royal Mencap Society v Tomlinson Blake has not attracted the attention paid to the Uber litigation, also to reach the Supreme Court later this year. Yet Mencap will have significant ramifications for a segment of the British workforce at the front line of the coronavirus response, namely care workers.

The pandemic has confirmed that the most essential workers are often in low-paid or insecure jobs: bus drivers, supermarket staff, cleaners, among others. When we emerge from the crisis it will be a priority radically to improve the treatment of these workers.

This newfound respect must include recognising and remunerating caring labour. The Court of Appeal judgment in Mencap undermines wages and informalises working relations in the care sector. If the Supreme Court overturns this decision, it will be a fitting prelude to a kinder era.

Time-drainage in Mencap and Uber

In Mencap the Court of Appeal excluded a care worker from the minimum wage during periods when she was entitled to sleep. In Uber BV (UBV) v Aslam it held a group of Uber drivers to be covered by labour law while waiting to be assigned a passenger.

 Mencap and Uber tend to be considered separately. My recent paper, however, argues that – while superficially distinct and of contrasting outcomes so far – these cases are emanations of a common drive: towards labour force casualisation. Both showcase strategies designed to drain vulnerable time-periods from the ambit of labour law, or what I term ‘temporal casualisation.’

 The Framed Flexibility Model

The paper argues that a regulatory framework proposed earlier – the Framed Flexibility Model – is useful to compare Mencap and Uber. The Model identifies two regulatory approaches to conceptualising working time. Productivity regulation excludes periods that are, or are characterised as, non-productive. The unitary approach, in contrast, counts all workplace-hours towards both working time and wage rights.

Uber: a unitary approach (so far) prevails

Uber features a species of ‘non-productive’ time that is intrinsic to the taxi and private hire sector – when drivers are waiting to be assigned a passenger. Uber’s argument is that its drivers are untouched by employment law in these periods.

The UK courts, however, have embraced the unitary approach. The Court of Appeal held the Uber drivers to be ‘workers’ during these ‘availability periods’ and the Employment Appeal Tribunal that these hours counted towards working time rights.

Mencap: productivity regulation in care work

Simultaneously, the unitary approach is under threat in care work.

Mencap centres on arrangements standard in the sector: a carer is required to remain overnight in a client’s home and permitted to sleep. Under the Framed Flexibility Model overnight hours – including those spent sleeping – are fully counted as working time. The UK minimum wage legislation, however, covers a worker when ‘available’ at the workplace, but not where she ‘by arrangement’ sleeps there, unless she is ‘awake for the purposes of working.’

Pre-Mencap, the courts equated ‘availability’ with on-call periods, thus extending the minimum wage to overnight shifts. In Mencap, the Court of Appeal considered the carer merely ‘available’ and, since entitled to sleep, earning the minimum wage only when actively assisting clients.

At the heart of the judgment is an unvarnished rendition of productivity regulation in which the potential for episodes of waged-sleep captivated the Court. The judgment, however, has been argued to overstate the potential for sleep. It was also reinforced by early reports of the Low Pay Commission that favoured exclusion of the ‘paid-to-sleep’. Yet the Court appeared unaware that the government had since confirmed the unitary case law to accord with its policy, and the Commission had made peace with the unitary approach.

Temporal casualisation in the post-lockdown era

In Mencap and Uber the archetypally enduring – care work – and unevenly novel – platform work – have converged. These appeals permit the Supreme Court to choose how to regulate working time in the post-Covid-19 era.

The pandemic is a painful opportunity to reflect upon precariousness in the UK labour market, including in its gendered dimensions. If the crisis is to be a catalyst for change, the Supreme Court has been given the opportunity in Mencap to take the first step.

A longer version of this post is available here. The research paper is available here.