Temporal Casualisation and 'Availability Time': Mencap, Uber and the Framed Flexibility Model Deirdre McCann DWR Research Paper 01/2020 DWR Research Paper 01/2020 Temporal Casualisation and 'Availability Time': Mencap, Uber and the Framed Flexibility Model Deirdre McCann Durham Law School, Palatine Centre, Stockton Rd Durham, DH1 2LE, United Kingdom [email protected] This research paper can be downloaded from: www.dur.ac.uk/resources/law/UFW/RP01-2020 decentworkregulation.com twitter.com/UnacceptableFoW Temporal Casualisation and ‘Availability Time’: Mencap, Uber and the Framed Flexibility Model Deirdre McCann Professor of Law, Durham Law School [email protected] Abstract In 2020, the UK Supreme Court will hear an appeal in the Uber case, which has become a bellwether for labour rights in the ‘gig economy.’ Less celebrated is another appeal – Mencap – that will determine care workers’ entitlement to the minimum wage in overnight shifts. This paper contends that Mencap and Uber, although superficially distinct, respond to a common drive towards the temporal casualisation of the UK labour force. Both showcase strategies to drain vulnerable time from protected work. Both are centred on notions of ‘availability.’ The paper suggests that McCann and Murray’s Framed Flexibility Model is useful for conceptualising working time in these cases. While the Court of Appeal judgment in Uber has adopted a protective ‘unitary approach’, at least in gauging contractual duration, the Court’s judgment in Mencap embodies a ‘productivity regulation’ model that poses a particular risk to jobs in which there is an opportunity to sleep. The paper argues that Mencap and Uber are exposing and exacerbating crucial fractures – between legal frameworks on working time and wages and through a sectoral/gendered treatment of working hours – and highlights the Framed Flexibility Model’s ‘unity of labour law’ principle. Keywords: Mencap, Uber, labour law, care work, working time, casual work, gig economy JEL Codes: J45, J80, J81, J83, J88, K31 3 1. INTRODUCTION In 2020, the UK Supreme Court is hearing appeals against two decisions of the Court of Appeal, in Mencap1 and Uber.2 These cases prominently juxtapose two apparently dissimilar segments of the labour force – drivers and carers. Mencap and Uber have tended to be analysed separately.3 This paper instead adopts a holistic analysis.4 It argues that Mencap and Uber, while superficially distinct and of contrasting outcomes so far, should be understood as emanations of a common drive: towards the further temporal casualisation of the UK labour force. Both showcase strategies designed to drain vulnerable periods– of different genres – from protected time. Both are centred on the notion of ‘availability’ at work. The Supreme Court appeals therefore offer an opportunity to reflect on the evolving role of legal regulation in structuring the temporal dimension of casualisation. The paper suggests that a regulatory framework proposed in earlier contributions – McCann and Murray’s Framed Flexibility Model – is useful for conceptualising working time in Mencap, Uber and more broadly.5 It contends that the judgments each embody one of the two principal models of working time regulation: productivity regulation and 1 Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad [2018] EWCA Civ 1641. 2 Uber BV (UBV) v Aslam [2018] EWCA Civ 2748. 3 On Mencap, see ACL Davies, ‘”Sleep-in” Shifts and the National Minimum Wage: Royal Mencap Society v Tomlinson-Blake, Shannon v Rampersad (2018) 47(4) Industrial Law Journal 553-566; LJB Hayes, ‘Three Steps Too Far in the Undervaluing of Care: Mencap v Tomlinson-Blake’ (UK Labour Law, 15 August 2018), at https://uklabourlawblog.com/2018/08/15/three-steps-too-far-in-the-undervaluing-of-care- mencap-v-tomlinson-blake-ljb-hayes/ (last accessed 4 April 2020); LJB Hayes, ‘Restricting Minimum Wage Protection on Social Care “Sleep-in” Shifts’ (2019) 135(Jul) Law Quarterly Review 353-358. On Uber, see Guy Davidov, ‘The Status of Uber Drivers: A Purposive Approach’ (2017) 6(1-2) Spanish Labour Law and Employment Relations Journal 6-15; ACL Davies, ‘Getting More Than You Bargained For? Rethinking the Meaning of “Work” in Employment Law’ (2017) 46(4) Industrial Law Journal 477-507; Mark Freedland and Nicola Kountouris, ‘Some Reflections on the “Personal Scope of Collective Labour Law’ (2017) 46(1) Industrial Law Journal 52-71; Jeremias Prassl, ‘Who is a Worker?’ (2017) Law Quarterly Review 366-372; Simon Deakin and Christopher Markou ‘The Law-Technology Cycle and the Future of Work’ (May 2018) Legal Studies Research Paper Series/University of Cambridge Faculty of Law Paper No. 32/2018, at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3183061 (last accessed 4 April 2020); Ewan McGaughey, ‘Uber, the Taylor Review, Mutuality and the Duty Not to Misrepresent Employment Status’ (2018) 48(2) Industrial Law Journal 180-198; Sandra Fredman and Darcy Du Toit, ‘One Small Step Towards Decent Work: Uber v Aslam in the Court of Appeal’ (2019) 48(2) Industrial Law Journal 260-277; Jeff Kenner ‘Uber Drivers are “Workers” – The Expanding Scope of the “Worker” Concept in the UK’s Gig Economy’ in Jeff Kenner, Izabela Florczak, and Marta Otto (eds) Precarious Work. The Challenge for Labour Law in Europe (Cheltenham: Edward Elgar, 2019) 197-221. 4 The holistic approach is derived from D McCann, ‘New Frontiers of Regulation: Domestic Work, Working Conditions, and the Holistic Assessment of Nonstandard Work Norms’ (2012) 34 Comparative Labor Law and Policy Journal 167–92, where it was advanced to contend that labour law as a whole should be understood as in part defined by the legal treatment of non-standard workers. 5 Deirdre McCann and Jill Murray, ‘Prompting Formalisation Through Labour Market Regulation: A “Framed Flexibility” Model for Domestic Work’ (2014) 43(3) Industrial Law Journal 319-348. See also Model Law on Working Time in Domestic Work, at https://www.dur.ac.uk/resources/law/UFW/ModelLawonWorkingTimeinDomesticWorkBriefing.pdf (last accessed 4 April 2020); Deirdre McCann and Jill Murray The Legal Regulation of Working Time in Domestic Work (Geneva: ILO, 2010), at https://www.ilo.org/wcmsp5/groups/public/---ed_protect/--- protrav/---travail/documents/publication/wcms_150650.pdf (last accessed 4 April 2020); https://www.dur.ac.uk/law/policyengagement/ufw/publications/framedflexibility/ (last accessed 4 April 2020). 4 the unitary approach. The paper has a particular focus on Mencap, evaluating the Court of Appeal judgment as epitomising productivity regulation. The Framed Flexibility Model is suggested to be a regulatory framework apt for both cases, as a location-based unitary approach applicable to both working time and wage regulation that readily encompasses ‘availability periods’ of all genres. Towards judicial decision-making, the paper contends that the Supreme Court should uphold and clarify the Court of Appeal’s decision in Uber and overturn the judgment in Mencap. For the scholarly debates, the paper explores the pertinence of the two decisions to the evolution of temporal casualisation. It identifies two evolving trends: that wage regulation is being conceptualised as inevitably distinct from working time law and has been confirmed as a crucial site of temporal fragmentation; and that sectoral/gendered fractures in the regulation of working time are being exacerbated. The paper proposes that, to avert regulated time-drainage, legal analyses would benefit from adhering to a ‘unity of labour law’ principle, which underpins the Framed Flexibility Model and calls for systems of regulation to be conceptualised as an integrated whole. Section 2 outlines the Framed Flexibility Model, highlighting its renditions of productivity regulation and the unitary approach. Sections 3 and 4 analyse the Court of Appeal judgments in Uber and, in more depth, Mencap. The decision in Uber, it is argued, signalled a welcome judicial grasp of the unitary approach. It also confirmed that casualisation must be recognised as equally contractual and temporal and that, in the contemporary dynamics of labour market casualisation, these twin dimensions are increasingly intertwined. The Court of Appeal judgment in Mencap, in contrast, is argued to embody the productivity regulation model, posing a particular risk to jobs in which the opportunity to sleep is an element of the employer’s work organisation. The paper identifies an obligation-oriented unitary approach, reflected in the pre-Mencap case law and elaborated with most precision by the Employment Appeal Tribunal in Mencap. Section 5 examines what Mencap and Uber reveal for the regulatory dimensions of temporal casualisation. It argues that the cases are exposing and exacerbating crucial fractures – between legal frameworks on working time and wages and a sectoral/gendered treatment of working hours – and highlights the pertinence of the Framed Flexibility Model’s ‘unity of labour law’ principle. 2. THE FRAMED FLEXIBILITY MODEL: PRODUCTIVITY REGULATION AND THE UNITARY APPROACH To understand the Mencap and Uber litigation as potential conduits to temporal casualisation, it is worth returning to the Framed Flexibility Model of working time regulation.6 The Model was a scholarly contribution to the International Labour Organization (ILO) standard-setting exercise that generated the Domestic Workers Convention, 2011 (No. 189). Identifying domestic work as crucial to both the evolution of working time laws and to formalisation of unregulated