Three steps too far in the undervaluing of care: Mencap v Tomlinson-Blake – LJB Hayes

Mencap v Tomlinson-Blake [2018] EWCA Civ 1641 is a judgment to take your breath away. It follows an established pattern in which the UK higher courts misunderstand, misrepresent and undermine the value of care workers’ labour. On this occasion, the Court of Appeal’s decision removes entitlement to minimum wage protection from care workers engaged in so-called ‘sleep-in’ shifts. Here I draw attention to just three of the many (breathtaking) steps that have produced this decision and that warrant its re-examination. First, the bending of facts established at Tribunal. Second, the presumption that care work is a generic occupational activity. Third, the cavalier way in which a decade of progressive decisions by the Employment Appeal Tribunal are brushed aside. An application to the Supreme Court has now been made by UNISON on behalf of Claire Tomlinson-Blake and by the team acting in the conjoined claim of John Shannon. A thorough re-hearing by the Supreme Court could restore the integrity of prior EAT decisions and build upon them.

While employers, social services managers and politicians have celebrated the Court of Appeal judgment, care workers are rightly angry about the chaos it is causing in their working lives, as shown on the #awakeonasleepin hashtag on twitter and the the July 2018 Local Government Association Briefing. Some are facing immediate cuts in their pay with a return to below-minimum wage flat-rate payments for sleep-in shifts. Others are bewildered by spurious suggestions from employers that there is now no lawful reason to provide hourly pay on a sleep-in and that hours paid by ‘mistake’ may be reclaimed as unpaid working time on day shifts. The legality of such manoeuvres is largely immaterial to front-line workers in a sector notorious for minimum wage non-compliance, underfunding and insecure contracting. Care workers look with hope to the Supreme Court and the prospect of restoring recognition that their ‘sleep-in’ shifts constitute ‘work’ for which employers must pay at least a minimum wage hourly rate. Without it, care workers will have few options but to consider industrial action alongside a concerted campaign for reform of minimum wage law.

Background

Claire Tomlinson-Blake is employed by Mencap to support vulnerable adults with severe learning disabilities to live as independently as possible in their privately-owned home. She works overnight ‘sleep-ins’ and is paid a flat rate of £29.05 for an 8-hour shift. The Employment Tribunal and Employment Appeal Tribunal (EAT) decided that she was ‘working’ for the purposes of Reg. 30 National Minimum Wage Regulations 2015 (NMWR) and this meant she had been underpaid because all her ‘sleep-in’ hours should have counted as time work for national minimum wage purposes. This appeal by Mencap contended that these prior decisions wrongly failed to apply Regulation 32 NMWR, meaning that that Tomlinson-Blake was not working as per Regulation 30 NMWR but alternatively was entitled to minimum wage protection only when ‘required to be available’, a provision which ‘only includes hours when a worker is awake for the purposes of working’.

Permission to intervene in Tomlinson-Blake was given to employers’ association Care England by the Court of Appeal on grounds of the general importance of the case to employers in the care sector. That is understandable, but it is indicative of the general tenor of the judgment that the importance of this case to care workers, an occupational group with over a million members in the U.K., is not explicitly acknowledged.  Employers had claimed, going into the case, that as a consequence of prior EAT decisions their liability for minimum wage underpayments for sleep-ins amounted to £400 million (enough to bring the entire sector to its knees said some) and other reports claimed half of all services would be disbanded. The veracity of such assertions is hard to test, but even if only half true it seems the Court of Appeal decision has erased huge wage deficits owed to the care workforce and considerably reduced their current statutory wage entitlements.

While on its face, Tomlinson-Blake concerned the question as to whether minimum wage protection should accrue on the basis of time during sleep-in shifts, one wonders how it might alternatively express judicial support for employer resistance to the higher rate National Living Wage, controversially introduced in April 2016. Prior decisions of the EAT in Whittlestone v BJP Homesupport and Esparon v Slavikovska in 2013 and 2014 unequivocally asserted that care workers employed on ‘sleep-in’ shifts to meet health & safety or other statutory / service delivery provisions relating to vulnerable adults must have this time counted for minimum wage protection. These, and prior EAT cases, had also established that regardless of whether a worker was sleeping, a contractual requirement to attend and remain at a premises is a duty constituting ‘work’ for the purposes of minimum wage protection, not least because the period of attendance is controlled by the employer and the worker is subject to discipline if they leave the premises or fail to perform other required duties during the shift. Yet the wrath of Mencap and other employers does not appear to have been provoked until after the 2016 introduction of the National Living Wage rate of £7.50 which gave an 11% increase to the pay protection threshold for workers aged 25+ after almost a decade of decline in the real value of the minimum wage. The National Living Wage resulted from political gamesmanship by Conservative Chancellor George Osbourne, attempting to steal the ‘workers’ champion’ crown from Corbyn’s Labour. It marked a unique departure from historic traditions of setting minimum rates based on the recommendations of the Low Pay Commission and made national minimum wage strategy ‘political’ in a way which had not been seen since the early years of the Blair government.

Tomlinson-Blake

It was in this post-national living wage era that the first instance tribunal claim in Tomlinson-Blake was heard and subsequently appealed as one of the three cases wrapped together in Roberts v Focus Care Agency. The decision of the EAT was issued in April 2017, whereupon Mencap launched a vigorous campaign to end what it termed the #sleepincrisis. This large-scale, charitable employer of support workers for people with learning disabilities enlisted the help of celebrities including Joanna Lumley and Jodie Whittaker to produce online videos arguing that minimum wage protection during sleep-in shifts meant support for vulnerable adults was under existential threat.

From Lord Justice Underhill’s opening sentence, it is clear which way the Court of Appeal judgment in Tomlinson-Blake will fall. The question as to whether care workers have a statutory right to minimum wage protection for time they work on sleep-ins depends on the extent to which one regards their contractual obligations and duties as ‘work’. In his opening two sentences LJ Underhill is at pains to avoid any hint of ‘care’ as ‘work’. He states it is:

very common in the care sector for workers to agree to ‘sleep in’ overnight at premises where elderly, disabled or otherwise vulnerable people live, on the basis that they can be called on if assistance is required in the night but otherwise have no duties.

The above sentence paints a picture of a widespread contracting practice entailing no duties and comprised of a simple agreement that one party may be called upon by the other if needed. LJ Underhill continues by suggesting this deal is typically sealed by a flat-rate payment, except in the event that the worker is called upon (without mentioning that the flat-rate is often extraordinarily low and rates have deteriorated despite a decade of case law which has ruled sleep-ins qualify for minimum wage protection):

The agreement … will typically be in return for a fixed amount with an entitlement to further pay if the worker is in fact called on.

I know from the research I conducted with care workers for my monograph Stories of Care (Palgrave, 2017), as well as from ongoing engagement, that care workers disagree fundamentally with the assumptions upon which this judgment is founded. Not only does the Court of Appeal fail to understand the contractual basis of a sleep-in, it fails to understand the purpose of a sleep-in and indeed does not even recognise that the organisation of care work is dynamic, it changes over time and that sleep-ins take place outside of residential care homes.

1. Bending the facts

LJ Underhill establishes the Court of Appeal’s definition of a ‘sleep-in’ at para 6:

the essentials of the situation which falls to be considered are that the worker is contractually obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity; and when I refer to “sleeping in” or cognate terms that is what I mean.

I have highlighted in bold two contentious aspects of this definition. The term ‘expected to sleep’ is a significant amendment to the terms ‘could sleep’ or ‘permitted to sleep’ or ‘allowed to sleep,’ or ‘free to sleep’ which have been used in prior judgments on this issue (e.g in Whittlestone v BJP Home Support, Burrow Down v Rossiter, Scottbridge Construction v Wright). A brief Westlaw search suggests ‘expected to sleep’ is a novel innovation, absent from any prior judgment in the 20 years since UK minimum wage law was introduced.

It is a troubling term in the context of Tomlinson-Blake because the first instance Tribunal found, as a matter of fact, that during a sleep-in shift:

No specific tasks are allocated to the claimant to perform during that shift, but she was obliged to remain at the house throughout this shift and to keep a listening ear out during the night in case her support is needed. She is expected to intervene where necessary to deal with incidents that might require her intervention (for example if one of the men is unwell or distressed) or to respond to requests for help; and she is obviously expected to respond to and deal with emergencies (para 49).

Hence by way of contrast to the contractual expectation ‘to sleep’ proposed by LJ Underhill, the fact-based definition of a ‘sleep-in’ applied at Tribunal and EAT was based on contractual expectations ‘to intervene where necessary’ and ‘to respond to and deal with emergencies’. The difference in emphasis is stark. It is especially so when accompanied by the further plank of LJ Underhill’s definition in which the worker on a ‘sleep-in’ … ‘may be woken if required’.  This suggests that on a ‘sleep-in’, responsibility for waking rests with a third-party intervener who decides whether or not to wake the care worker from her slumber. However, at Tribunal the facts were established that Tomlinson-Blake had sole responsibility for getting up, she worked alone in the home of two adults with learning disabilities and her presence in that home enabled her employer to comply with the legal obligation placed upon it to provide an appropriate level of care. Such facts were not contested at EAT and are indeed noted later in LJ Underhill’s judgment (see para 92). Nevertheless, from the ‘sleep in’ definition at paragraph 6 onwards, LJ Underhill appears to apply minimum wage law to imaginary circumstances which may suit a purpose of removing care workers’ prior minimum wage entitlements but diverge significantly from the facts of Tomlinson-Blake’s actual employment.

2. Presuming care work is generic

The interpretive approach taken by the Court of Appeal in Tomlinson-Blake is distinctive because, in contrast to its EAT predecessor in Focus, considerable weight is given to two passages of the First Report of the Low Pay Commission. This report was published back in 1998 (prior to minimum wage law being enacted) and recommends that the Secretary of State makes regulations providing that:

when workers are paid to sleep on the work premises they should agree their allowance, as they do now. But workers should be entitled to the national minimum wage for all times when they are awake and required to be available for work (Recommendation 12).

Furthermore, paragraph 4.34 of the same report states:

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

N.B my note for readers: the special treatment being that hours when ‘paid to sleep’ do not attract minimum wage protection but time when these workers are awake and required to be available for work does. 

LJ Underhill’s reasoning hinges on his declaration that the two passages quoted above are of ‘fundamental importance’ to the appeal. Yet since they bear little factual relevance to the details of this appeal they are not necessarily genuine nuggets of gold.  Recommendation 12 is only relevant if one accepts that care workers on sleep-ins are ‘paid to sleep’. Care workers generally, and Claire Tomlinson-Blake specifically, contend they are not ‘paid to sleep’ but are paid to satisfy the legal obligations of care that their employer owes to a vulnerable adult. Furthermore, LJ Underhill give special attention to the words ‘e.g. in residential homes’ at paragraph 4.34, asserting that this indication of exceptionalism ‘plainly covers cases of the kind with which we are concerned here’. The fact that Tomlinson-Blake is not a residential care home worker is totally overlooked. This oversight, together with the underlying presumption that care work is generic and thus occupational details are unimportant, suggests the interpretative approach is flawed.

3. Brushing aside of a decade of EAT decision-making

Having determined that the passages above are fundamental, LJ Underhill’s task becomes simplistically clear; he must approach the issues in Tomlinson-Blake with a view to achieving ‘so far as possible’ the objective ‘to not have the hours in question counted for minimum wage purposes’ (para 46). Consequently, LJ Underhill’s decision-making conveniently sidesteps any serious engagement with the case’s core question, namely whether care workers on sleep-ins are ‘working’ for the purposes of minimum wage entitlement. It is difficult to reconcile his assertions at para 43 that this question, while at the core of the case, is ‘logically … the first step’ and ‘strictly necessary’, yet also represents ‘for practical purposes an unnecessarily elaborate approach’ (which he can therefore avoid adopting). Given that the livelihoods of workers in one of the UK’s largest low wage industries are at stake here, such sophistry is unwelcome.

By relying on the authority of the passages from the 1998 report (which I have shown above to be at odds with the facts of this case), LJ Underhill seeks to uphold the apparent original intent of the Secretary of State to put residential care home workers in a category of special treatment, an intent which has seemingly not been altered by subsequent governments. He then tracks through a body of case law on care worker sleep-ins which is both inconveniently complex and contrary to his mission, not least because Claire Tomlinson-Blake does not work in a residential home. Having no issue with British Nursing Association v Inland Revenue, LJ Underhill asserts that the Inner House decision in Scottbridge Construction v Wright is a ‘real problem’, but one which he overcomes by distinguishing Scottbridge on grounds that Mr Wright did not work in residential care.  This means that the root problem in LJ Underhill’s case law review lies with the EAT judgment in Burrow Down Support Services v Rossiter. This case concerned a worker in a residential care home, the EAT decision followed Scottbridge and did not consider the passages of the Low Pay Commission report which LJ Underhill regards as being fundamental.  For this reason, as well as for failing to refer to the Court of Appeal’s decision in Walton v Independent Living Organisation, LJ Underhill finds that Burrow Down was wrongly decided.

It is because of these apparent errors in Burrow Down that LJ Underhill sees ‘no advantage in reviewing’ any of the 10 subsequent EAT cases which either followed or distinguished Burrow Down. This, despite a further uncomfortable truth. Burrow Down concerned a male security guard working in a residential care home and did not concern a care worker on a ‘sleep-in’. Meanwhile, the 10 EAT cases which LJ Underhill dismisses in a single sentence examine the statutory rights of care workers who do not all work in residential care homes, span a period of over a decade and concern claims about the minimum wage status of ‘sleep-ins’. These are decisions made with reference to wide-ranging facts, on the basis of wide-ranging argument and legal authority including, but not limited to Burrow Down. It is concerning that the Court of Appeal affords them such scant regard.

In the context of Tomlinson-Blake, LJ Underhill’s enthusiasm for the Court of Appeal’s decision in Walton is jarring because the two cases cover very different legal and factual terrain. It is worthwhile noting that when Walton was heard at the EAT, Holland J raised concerns that paying for all working time would price overnight care ‘out of the market’. The Court of Appeal’s decision in Walton effectively constructed care work as having no financial value except during intermittent periods when a care worker was in physical contact with her service-user while bathing, dressing, assisting with cooking etc.

In Tomlinson-Blake the Court of Appeal has sharpened its record of hostility towards care workers’ attempts to have their labour fully recognised as ‘work’ (for another example see Reyes v Al-Malki [2015] EWCA Civ 32). The furtherance of a doctrine in which the contractual responsibilities of care workers are not ‘work’ for the purposes of the minimum wage is highly damaging for the labour market position, social status and economic wellbeing of care workers. It is also a doctrine which corrodes the universalism from which the UK’s minimum wage scheme draws its legal and moral integrity.

The decision of the Court of Appeal in Tomlinson-Blake affirms a judicial willingness to mould the law such that care workers are distinguished from other workers by the nature of the work they undertake, and it sets set them at considerable economic disadvantage in so doing. In ‘Stories of Care’ I traced how the inadequacies of UK employment law had created conditions through which care workers were subject to ‘institutionalised humiliation’ by judgments in which the participation of care workers in the labour market is persistently regarded as inferior. Those arguments, and their relevance, are further strengthened by the decision by the Court of Appeal in Mencap v Tomlinson-Blake.

 

About the author: Dr LJB Hayes is Reader in Law at Cardiff University and author of Stories of Law: A Labour of Law – Gender and Class at Work (2017, Palgrave).

(Suggested citation: ‘LJB Hayes, ‘Three steps too far in the undervaluing of care: Mencap v Tomlinson-Blake,’ UK Labour Law Blog, 15 August 2018, available at https://wordpress.com/view/uklabourlawblog.com).