Discrimination by Legal Design? UK Supreme Court in Mencap v Tomlinson-Blake Finds Care Workers are Not Protected by Minimum Wage Law for Sleep-in Shifts

Abstract In Mencap v Tomlinson Blake the Supreme Court finds that the UK’s statutory national minimum wage scheme excludes care workers from protection during sleep-in shifts. UK employment rights thus move further from international labour standards, including ILO Convention 189. This commentary argues that Mencap points to discrimination by legal design. The Supreme Court gives expansive and uncritical regard to the wording and circumstances of a 1998 Low Pay Commission report that recommends residential care workers be excluded from protection as a ‘special treatment’. It shows that care workers’ entitlement to statutory protection is dependent on their contractual arrangements and does not consider inequality of bargaining power. The judgment erases caring labour of its cognitive and professional skills and puts care workers at a particular disadvantage. The care sector is notorious for the poor functioning of its labour market as well as for low pay. Care workers are mainly women and are disproportionately black and minority ethnic women. The discriminatory intent of Parliament, as explored by the Supreme Court in Mencap, reveals that the UK’s statutory minimum wage scheme is currently unable to provide workers with the dignity that would come from assigning a minimum value to the full range of care work.