Tomlinson-Blake in the Supreme Court – by Kate Ewing

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The Supreme Court decision in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad & 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 legal terms, the decision also generates real concerns about the fragmentation of a basic minimum labour standard – the wage floor.  One difficulty is the legal framework that workers have to rely on in relation to minimum wage protection in the UK.  Further concerns also relate to 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’). 

1. National Minimum Wage

In the UK the substantive right to minimum wage is set out in the National Minimum Wage Act 1998 and implemented in practice by the National Minimum Wage Regulations 2015 (which consolidate amendments to the National Minimum Wage Regulations 1999).  The NMW system is complex and based on an hourly rate of pay.  What constitutes an hour subject to minimum wage regulation is thus integral to the determination of the pay received by a worker.  Hours to be regulated are categorised in four different ways depending on the payment system used by the employer:

• Salaried hours: based on an annual salary and an annual number of hours to be worked.  Payment is made in regular instalments and not tied to the precise hours worked in that pay period. 
• Time work: based on the actual time worked or considered to be worked for the purposes of the legislation.
• Output work: based on the output of the worker (which is not time work) and measured by the number of pieces made or processed or tasks performed.
• Unmeasured work: this is work which is not salaried, time or output work.

The category of work relevant to the sleep-in issue contested in Mencap is time work.  The meaning of time work is defined by Regulation 30 as:

‘…work, other than salaried hours work, in respect of which a worker is entitled under their contract to be paid –

• by reference to the time worked by the worker;
• 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
• 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.’

Under Regulation 31, ‘the hours of time work in a pay reference period are the total number of hours of time work worked by the worker or treated under [the Regulations] as hours of time work in that period.’

Regulation 32 in turn addresses time work where a worker is available at or near a place of work:

• 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 unless the worker is at home.
• In paragraph (1) 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.

The UK minimum wage in its use of the concept of ‘available for work’ in the time work category creates an interim status between work and rest which leaves workers vulnerable and subject to the vagaries of judicial interpretation.  This issue is explored in Deirdre McCann’s work here where she utilises a theoretical framework model for her analysis.  McCann refers to this status as temporal casualization, and notes that ‘excising genres of slack time from the legal protection is inherently dangerous.  Periods of “availability” are difficult to distinguish from other varieties of slack time…  Once unleashed, legalised conceptions of availability time are at hand for further attempts to drain time from the working day’, which can undermine a range of protections including minimum wage laws. 

This is because of the creation of a faux distinction between hours actually worked and hours worked subject to NWM regulation.  This is noted by the Supreme Court in relation to their analysis of the wording of Regulation 17 of the 2015 Regulations, whereby the NMW is calculated on the basis of hours worked or ‘treated as worked’.  According to Lady Arden, 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.  The effect is to create a category of work which falls outside minimum protection and therefore for which potentially no wage is due.  It is a fundamental and major weakness of the regulatory framework if it is to serve as a wage floor that elements of work time can be excluded from protection in this way. And as is noted by McCann, it embeds ‘a legislative vulnerability’ for workers. 

2. Supreme Court’s Decision

The appellants in this case were arguing that they were entitled to be paid for the entirety of their sleep-in shifts.   The work of the first appellant,  Ms Tomlinson-Blake, was described as falling in two parts.  She undertook ‘day care’ for which she was salaried.  She undertook ‘sleep-ins’ for specified hours which was to be dealt with under the time work provision in the Regulations.  The sleep-in was described by the Court as time when the worker was permitted to sleep, required to remain on the premises and time in which she had no duties except to keep a listening ear out (including when she was asleep) and attend emergencies.  For this Ms Tomlinson-Blake was paid an allowance of £22.35 plus one hour’s pay in expectation of the amount of work she would have during the sleep-in, giving a total payment per sleep-in of £29.05.  The position of the other appellant, Mr Shannon, was somewhat different.  He was an on-call night care assistant.  He was provided with free accommodation and utilities and required to be in this accommodation from 10pm to 7am and permitted to sleep.  He was to be available to attend any emergency if called upon by the on duty night care worker.  He was paid £50, and then later £90 per week for this.

In dismissing the appeals, the Supreme Court accepted that work for some purpose may not necessarily be work for NMW purposes.  Specifically, it is noted that the question for the Court was not whether the worker is working but how her hours of work are to be determined for NMW purposes.  The rational for this is given by looking at the heading to the Chapter of the Regulations dealing with time work – ‘Hours worked for the purposes of NMW’.  Within that Chapter are Regulations 30 and 32.  The Supreme Court accepts that it is possible to be available for work, be permitted to sleep, and not be a sleep-in worker.  What distinguishes a sleep-in worker is where the principal purpose and object of the arrangement is that the worker will sleep at or near the place of work.  Responding to any disturbance during the time allocated for sleep must be subsidiary to that purpose or objective.  This means that not every worker permitted to take a nap in between intermittent tasks is necessarily a sleep-in worker.  They may, depending on the facts, be working.  However, where it is said that a worker’s principal purpose and object of the arrangement is that the worker will sleep, the consideration of what they do when they are awake only relates to consideration of whether they are awake for the purposes of working (and thus entitled to NMW for this time). 

It is important to note the nuance of the Court’s position.  The issue is also not whether the worker in fact sleeps, or indeed is even expected to sleep, but rather whether there is an arrangement under which she may sleep at or near the employer’s premise.  By making this distinction the Court broadens the scope of the sleep-in provision to any worker who is provided with an arrangement whereby they may sleep at the employer’s premises.  What the worker does in fact do is not relevant.  Nor does the Court appear to consider it relevant that the arrangement may be imposed by the employer for their own benefit in terms of limiting the application of NMW protection.  Nevertheless, in reaching this conclusion the Court relied on Low Pay Commission (‘LPC’) reports, placing particular emphasis on the First Report, which noted that: ‘For hours when workers are paid to sleep on the premises’ an allowance should be agreed and there will be NMW entitlement for all time when the worker is awake and required to be available for work.  ‘Sleepers-in’ were thus ‘an exception to the usual rule that availability for work required by the employer [is] to be treated as work’, so that ‘a sleep-in worker cannot actually be working for NMW purposes if the arrangement is that he is to be present and sleep in the premises during his hours of work subject only to emergency calls.’  Therefore regulation 32(2) applies to all such workers doing time work. 

On this reasoning, it thus seemed inevitable that the Court of Appeal decision in British Nursing Association v Inland Revenue [2002] EWCA Civ 464 (‘British Nursing’) would be overruled.  This case concerned workers who administered a telephone booking service.  During the day this was done at the employer’s premises but at night the calls were rerouted to the homes of employees to perform the work task from there.  It was found that the employees were working throughout their shift irrespective of where the work took place.  The Court in that case took a pragmatic view which recognised that to be deemed working during the day a worker would not necessarily be actively productive for every moment at work and thus only paid for such time.  It was recognised that in the course of a shift there would be lulls in activity and periods of more intense activity.  In the whole this was work.  There was no reason, when performing the same tasks to distinguish the work undertaken at night because it happened to take place at the worker’s home.  That is to say, that alone did not render it subject to the home exception under the Regulations.  The way the Court sought to reconcile this was by a construct of the Regulations which sought only to engage the exceptions if the worker was not working but only available for work.  The judgment is notable for its strident construction of the NMW: in contrast to Mencap it held that reducing workers to only be working when engaged in actively productive tasks and discounting periods waiting for such tasks would ‘effectively make a mockery of the whole system of the minimum wage’. 

3. Narrow and Legalistic

The Court’s approach to the purpose of the NMW is revealing.  Much emphasis is placed on constructing the provisions of the NMW legislation on the basis that this was the purpose and intention of Parliament when the provisions were enacted.  As already pointed out, reports of the LPC are used by the Court to provide supporting justification for this approach.  The Court notes that ‘when the President of the Board of Trade, the Rt Hon Margaret Beckett MP, made a statement in the House of Commons on 18 June 1998 accepting the recommendations of the First Report of the LPC, she stated that setting the NMW at the levels then announced would help some ‘2m workers escape from poverty pay, without adverse effects on jobs or inflation’.  The Court goes on to say that ‘the NMW remains a measure of considerable importance to millions of workers in the United Kingdom and part of the infrastructure of our democratic society’.  This however contrasts with the Court’s own description of the objective of the NMW – it is described as something which ‘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’.

The narrow framing of the NMW as a market failure initiative contrasts with the approach taken by the Supreme Court in Uber BV & Others v Aslam & Others [2021] UKSC 5 (‘Uber’) (a unanimous judgment before a panel of judges which contained two of the same judges as in Mencap).  There, the Court recognised that ‘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’.  Although the Court in Uber refers to categorisation of worker status, the same analysis can be applied to the way employers may seek to construct time and label activity in a way which determines if it is treated as work or as a sleep-in exempt from NMW scope – ultimately for the employer’s benefit.  The narrow approach taken by the Court in Mencap does not just relate to the construction of the purpose of the NMW.  In the lead judgment, Lady Arden notes that the question before the Supreme Court is not whether the worker is working, but how the worker’s hours of work are to be determined for NMW purposes.  While on the face of it this appears correct, it could also be said to be a rather artificial distinction. 

In order to determine the latter, it is inevitable that consideration, if not determination, has to be made of the former.  Furthermore, despite stating at the outset of the analysis in the lead judgment that the statutory interpretation should not be approached ‘with any preconception as to what should entitle the worker to a wage’, we see the Supreme Court taking a narrow and literal approach to the construction of work and work time.  This is exemplified in the same paragraph by the suggestion that it is clearly not the case that ‘simply because at a particular time an employee is subject to the employer’s instructions, he is necessarily entitled to a wage’.  This is a striking observation, supported by a false equivalence drawn between a worker or employee being subject to an employer’s instruction (the sleep-in worker), and a worker or employee acting in a certain way for the employer’s benefit (the worker travelling from home to a care shift).  It is very difficult to see how being subject to the instruction that you may not leave the employer’s premises (on pain of disciplinary action) for an entire work shift, as being analogous to the worker or employee commuting from home to work.  In the latter case, the employee or worker takes steps in their own time, where they will still have control over their own activity (mode of travel, time they leave, who they interact with en route, if they stop to collect items, for instance) before presenting themselves for work at the employer’s premises. 

Further, the example of sleep-in work is not analogous to general employer instructions which may continue to apply outside of work time but in real terms place limited burden on a worker.  For example, it is not the same as workers being told they must not post messages, even in their free time and on their personal accounts, on social media which could bring the company into disrepute.  In the case of sleep-in work undertaken in the social care sector, the worker is often at the premises of the employer, not permitted to leave, may be disciplined for doing so, cannot freely attend to their own affairs, and their presence may permit the employer to be operational.  The concern is that this narrow construction of work time will be further elaborated in future, for example, in relation to the construction of work time in for NMW purposes when implementing Uber.  This is because of the way that the Supreme Court in Mencap affirms Walton v Independent Living Organisation Ltd [2003] EWCA Civ 199.  In that case, the Court of Appeal (which included Arden LJ) sought to distinguish time spent asleep and time spent undertaking specific active tasks within the unmeasured time category, where there is no equivalent to the Regulation 32 exceptions, in order to limit the scope of NMW coverage.

4. Low Pay Commission

The description of Ms Tomlinson-Blake’s sleep-in by the Supreme Court is also striking – she was ‘permitted to sleep during [the period designated as a sleep-in] but required to remain at the home of the two vulnerable adults for whom she cared throughout her sleep-in shift but she had no duties to perform during the night except (as she puts it [and was found as a fact by the First Instance Tribunal]) to “keep a listening ear out” even while asleep.  She had to attend an emergency if there was one.’(Emphasis added).  So, one the one hand she had no duties and on the other two duties are listed and overall, there is acknowledgment that she was caring for the two people throughout the night.  The Court appears to justify these linguistic gymnastics by stating that ‘It was inconsistent with the regulations to say that a person was working during a night shift when he was positively expected to be asleep throughout all or most of the relevant period’.  However, who expected this?  Who defined the arrangement? 

As previously highlighted, in Mencap the starting point for the Court is the existence of an arrangement where the worker may be permitted to sleep at the premises of the employer.  If it is said that this is the main objective of the arrangement, then the worker is performing sleep-in work and is neither working nor available for work for the purposes of the time work provisions and thus NMW protection.  Only time spent awake for the purposes of working (and not merely awake) is subject to NMW.  If we remind ourselves of the wording of the LPC recommendation – that ‘hours when workers are paid to sleep on the premises’ would fall under the sleep-in exception – we recall that it was not the LPC recommendation that ‘sleepers-in’ were the exception.  Yet in its findings about implementation of the LPC recommendation the Court states that such implementation is achieved, by making ‘sleepers-in an exception.’  However, what was material to the LPC recommendation were the hours and the purpose of the hours not the working status of the worker and their categorisation or labelling as ‘sleepers-in’.  The framing of the LPC exception applies to the hours not the worker.  

Consequently, the read by the Supreme Court perhaps could be said to overstep here and reason inconsistently with the LPC recommendation.  This is critical because it has the effect of widening the application of the exception, making it the norm.  However, if the framing of a sleep-in shift were to be read as narrowly and literally as other aspects of the Court’s reasoning then only those hours where workers are paid to sleep (and nothing else) could be legitimately subject to the exception, protecting more workers and limiting the scope to a true exception.   It is only in evaluating the issue of ‘awake for the purposes of working’ that the Supreme Court appears to consider relevant what is being undertaken by the worker during this time and more specifically, ‘what a worker is required to do when not asleep but within the hours of the sleep-in shift’.  The Court is of the view that in order to be awake for the purposes of working the worker must have duties to perform in the form of ‘tasks’ which would constitute work, such as responding directly to a call for assistance or an emergency, and ‘helping with distributing breakfast to the residents’ if requested by day staff (somewhat missing the point that Ms Tomlinson-Blake was also one of the day staff based on her shift patterns), and confusingly, in the alternative, ‘waiting for a call to assist’. 

What is the distinction between this being a task and not the listening ear?  And the fact that overnight the care worker may sleep between interventions – how is this distinct from the example of instances of workers who were expected to perform tasks but allowed to nap in between?  The closest that the Supreme Court gets to explaining this distinction is to equate having a ‘listening ear’ to being akin to an activity such as commuting to attend work and thus not attract NMW protection.  As noted, this equivalence simply does not bear scrutiny and is puzzling as a conclusion to say the least.  It also presents a difference with a non-sleep in shift worker on call at the employer’s premises.  The LPC report upon which the Supreme Court places so much emphasis states clearly that whether or not the worker has tasks to perform, the time is time work.  This interpretation by the LPC would be more consistent with a worker protective approach.  However, if a worker is engaged to perform work labelled as sleep-in work and where the employer arranges that they may be permitted to sleep and declares this as the primary objective and it is said that the worker does not have tasks to perform, according to the Supreme Court, the worker is not entitled to NMW compliant pay for this.  Even where the worker is in fact awake. 

Not all critics will be convinced by the Court’s construction of the primary purpose of the ‘sleep-in’ as being to sleep.  It appears beyond the contemplation of the Court (and the Court of Appeal below) that sleep could ever be considered work.  This relates to the very preconception of what entitles a worker to a wage that the Supreme Court states they seek to avoid.  Furthermore, 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 noted by Lydia Hayes.  Ms Tomlinson-Blake’s case was that 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, listening 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?  Can it reasonably said that she was ‘paid to sleep’ and that this was the primary objective of the arrangement? 

5. Impact in Practice

In addition to the nature of the Court’s reasoning, there are serious practical consequences to consider.  A compelling critique of the case has been put forward by Christina McAnea, General Secretary of UNISON the union which supported Ms Tomlinson-Blake’s case.  It raises questions such as: precisely how are workers to document their time awake and time working?  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 woken (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 constitute working.  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 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? 

Would we say to a university lecturer that time spent in an empty classroom reflecting on an incident between two students and how it might be prevented from reoccurring was not work time?  Why are some professionals considered to be working when they are thinking and others required to physically toil before it is considered work?  The effect in the case of care workers, however, is to splinter an eight or nine hour sleep-in shift into fragments of time which may be reckonable for minimum wage purposes.  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 – she is categorised under the legislation as performing salaried hours work for her day hours and a 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 the day hours of work and only 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 the day hours and all 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.  Additionally, apart from the pay implications, the case adds even more to the complexities around what time qualifies in practice, record keeping and the calculation of minimum wage compliance.  It also raises a real concern about replication in the care home sector 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 work on structural injustice and exploitation how the regulation of 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.  They 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 may 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. 

6. A Different Approach

One response to the judgment, and a valid one, is that the outcome simply reflects the inherent weaknesses in the statutory protection for workers.  The categorisation of sleep-in work as time work left to the judges the difficult task of grappling with the Regulation 32(2), in a statute that does not make allowances for the nuance of reality.  However, there is also an argument that the Supreme Court could have taken a different approach, which would have been more protective of low paid workers, and ultimately more consistent with both the purpose of the wage floor and, to at least some extent, their own reasoning in Uber.  There is certainly a perversity in the Court adopting a narrow approach to the scope of NMW protection which simultaneously leaves more workers less protected.  The Supreme Court’s approach is to only consider the activity undertaken by the worker at the end of the process of evaluating NMW scope.  Rather than adopting this approach, if we instead reverse the point at which assessment of what the worker, irrespective of labels (because labels determined by those with a vested interest in a particular outcome may be unreliable), is actually doing we must first define what the activity being undertaken is. 

That is to say, for the hours designated as sleep-in work, what was the objective of what the worker was doing?  Was she paid simply to sleep (to use the words of the LPC) or was she paid for some other purpose?  The activity viewed in this way can lead to either of the scenarios identified by the Supreme Court as being possible – work punctuated by sleep, or sleep occasionally punctuated by an emergency response.  The difference with approaching it from this perspective is that it is more likely to render the true sleep-in to be the genuine exception rather than the norm.  However, it also means that factors such as the level of employer control, the listening ear, the worker presence facilitating statutory compliance by the employer, and operation of the employer can all be accounted for rather, as in the case of the Supreme Court reasoning in Mencap, being discarded as irrelevant.  Viewed in this way, where the sleep-in shift is seen as the provision of care by way of a listening ear or the facilitating of independent living during which the employer may permit sleep and activities may be punctuated by sleep, a different outcome could have been reached by the Supreme Court. 

In exercising her role as a listening ear and evaluating when a situation required her intervention, a care worker would not only be awake but – contrary to the view of the Supreme Court – would be ‘awake for the purposes of working’.  Nor could it be said that the worker is awake for her own purposes in such circumstances.  She would also not be paid to sleep but rather to perform this care and supervisory function as the primary objective.  The fact that she may sleep intermittently between lying awake or being actively up and awake is a different matter.  The sleep is subsidiary to the primary function of being the listening, supervisory ear.

Further or in the alternative, if the purpose or objective of the sleep-in is viewed as being where the worker facilitates independent living for vulnerable people, we would see that in the absence of the worker, the goal – independent living – could not be achieved irrespective of the worker’s sleep status.  The fact that a worker may sleep is incidental to this primary objective.  Additionally, the requirement that the worker remains on site and is not permitted to leave and may be disciplined for doing so indicates that there is a fundamental importance to the mere presence of the worker.  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 arises 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 said not to be 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.  These are all important factors in evaluating the interpretation if the NMWA and associated regulations if seen as protecting workers.  The reductionist and fragmenting approach by the Supreme Court is thus deeply concerning and leaves workers vulnerable to exploitation (something acknowledged as a risk by the LPC). 

7. Conclusion

In its reasoning the Supreme Court endorses and facilitates the fragmentation of work time leaving more workers unprotected as elements of their work are determined to be outside the scope of the NMW, the lowest legal pay minimum.  This is enabled by the Court’s approach to the underlying construction of the NMW as a labour market regulation rather than a protection for low paid workers. 

What we see in Mencap, in seeking to avoid a construction of a sleep-in as work (and thus grant workers greater protection) is a narrow construction of time defined as time spent undertaking active tasks.  This despite a situation whereby a worker is obliged, at risk of disciplinary action, to remain on the employer’s premises and at the employer’s disposal, serving a function which permits the ongoing operation of the employer business and the labour saving practices of the employer.  It is also in the context of a labour relationship where the employer defines the method of payment, the labelling of the shift and activity and has a vested interest in limiting the extent of their pay liabilities.  Such a construction results in the worker not being entitled to have all these hours subject to NMW compliance requirements.

In many ways the Mencap judgment 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 the minimum wage, which is being increasingly used as ceiling rather than a floor.  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 demonstrate that the underlying exploitative work practices extend beyond the gig economy and either infect or underpin attitudes to labour protection more widely, including in the public sector and essential front line services.  It is in this regard that the Supreme Court’s decision and its likely contribution to the ongoing fragmentation of work time is deeply troubling.  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.

(Suggested citation: K Ewing, ‘Tomlinson-Blake in the Supreme Court,’ UK Labour Law Blog, 28 April 2021, available at https://uklabourlawblog.com/)