What constraints, if any, should the state place on the level of remuneration a worker contracted to sleep at her workplace is entitled to receive? That is the question to which my essay seeks to give a fair, practical and conceptually coherent answer. It does so by advocating the insertion of a third category between work and its opposite into National Minimum Wage legislation: that of employer-contracted sleep.
The classic example of employer-contracted sleep involves a care worker who sleeps on-site to provide assistance to vulnerable residents should the need arise, generally termed a ‘sleep-in shift’. Although on-site sleep is not the dominant model in the care industry, sleep-in contracts nevertheless have great significance: first, because they allow vulnerable adults the protection of on-call assistance in an emergency; second, because the sector’s liability for back pay may be as high as £400m should it be determined that they attract the National Minimum Wage, with attendant ramifications for the sector’s financial stability.
The National Minimum Wage Act 1998 currently fails to meet two of its key objectives whenever employers require workers to sleep on-site. First, it fails to protect workers from the inequality of bargaining power inherent in what might be termed the sleep–wage bargain: as the accompanying Regulations are currently interpreted (pending the Supreme Court’s decision in Mencap v Tomlinson-Blake), the legislation relinquishes all control over employer-contracted sleep to the common law. Given the common law’s notorious insouciance with respect to parties’ inequality of bargaining power, this opens the door to the lawful imposition of low or even non-existent pay for that sleep.
Second, the legislation fails to provide both parties to the contract with a clear, straightforward definition of their rights and obligations. This failure is wholly at odds with the ‘principle of universality, clarity and simplicity’ that the government sought to establish by means of the 1998 Act (to quote the Minister responsible for piloting the Act through the Commons).
As currently drafted, the 2015 Regulations draw a distinction between ‘work’ – a term undefined in the instrument – and time in which a worker is ‘available at or near a place of working’ but not ‘awake for the purposes of working’ (regs 27(1)(b) and (2)). The former must be remunerated at the NMW rate or above; the latter need not be. In consequence, the definition of work has formed the key battleground in disputes over sleep-in pay, with figures as eminent as Sir Patrick Elias, Sir Nicholas Underhill and Dame Ingrid Simler differing sharply in their analysis of whether employer-contracted sleep can fall within its scope. In interpreting the wording of the instrument, the tribunal is effectively forced to conduct a philosophical speculation on the definitional limits of work, choosing either to ‘round up’ employer-contracted sleep to fit the definition of work, or to round it down such that its work-like elements are ignored. That forced choice conflicts with both our intuitive understanding of how the stresses of work impinge on sleep and the concrete experience of sleep-in workers, one of whom described herself to an MP as ‘half-awake all night – listening in case [a client] needs you’. The task of judges faced with this choice is unenviable.
The solution lies in modifying the existing architecture of the Act and Regulations to create a discrete category of employer-contracted sleep, fairly reflecting its work-like qualities. To account for this hybrid status, I suggest the Act should be modified to require employees to be remunerated for contracted sleep at a specified multiplier (between 0 and 1) of the applicable NMW rate. That multiplier should be determined by the Low Pay Commission using the existing mechanisms for consultation with employer and employee groups embedded in the 1998 Act. This reform would bring much-needed certainty to tribunals, workers and employers, who could quantify their future liabilities with precision. It would fairly reflect the balance of rest and restriction of autonomy inherent in employer-contracted sleep – a restriction that is uncomfortably concrete in an era in which mere physical presence at the workplace is likely to increase the risk of exposure to coronavirus.
I am thrilled that the Law Reform Committee has selected my essay as the winning entry, and am grateful to the Bar Council Scholarships Trust for making possible a very generous award. This could not come at a more helpful time: when schools closed in March I was forced to pause my studies on the BPTC to look after my seven-year-old daughter. The award will bring very welcome financial assistance as I finish my final assessments. I have also decided to allow myself the treat of a hardcover copy of Goode on Commercial Law as bedtime reading. Final thanks go to my mother, herself a carer for much of her adult life, for discussing the realities of care work with me.
Oliver Brewis, winner of the 2020 Law Reform Essay Competition