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Sometimes sleeping on the job should be paid too

Is it possible to be “at work” — and so legally owed the minimum wage — while you are asleep in bed? What if you are behind the wheel of an empty Uber waiting to be assigned a passenger?

These questions were at the heart of two recent UK Supreme Court decisions, to which the judges answered “no” and “yes” respectively. The cases don’t just matter for the parties involved. Taken together, they show the law is incoherent and under-enforced on a matter of growing importance: how we define “work” and ensure people are paid fairly for it, even as the boundaries of the workplace and the working day are beginning to dissolve.

In the Uber case, the judges concluded that drivers were “workers” for the time they were logged into the app and available for rides. The judges reasoned that even when waiting around with no one in the car, the drivers were providing a service to Uber.

As one of the lower court judgments argued: “It is essential to Uber’s business to maintain a pool of drivers who can be called upon as and when a demand for driving services arises. The excellent ‘rider experience’ which the organisation seeks to provide depends on its ability to get drivers to passengers as quickly as possible. To be confident of satisfying demand, it must, at any one time, have some of its drivers carrying passengers and some waiting for the opportunity to do so.”

In the other case, a care worker employed by Mencap, the charity, was required to sleep at her vulnerable client’s home to “keep a listening ear” out and deal with any emergencies. She was paid far below the minimum wage for these night shifts. But the judges rejected her claim for unpaid wages, citing recommendations from the Low Pay Commission that the minimum wage does not apply to sleep-in workers while they are asleep. 

Set side by side, these judgments jar. The care workers have a lot in common with the Uber drivers. They, too, are providing a service to their employer when they do their “sleep-in” night shifts. Not only are they available in emergencies, but the care companies need them to be there to fulfil their contractual obligations to local authorities, which in turn are then able to discharge their statutory obligations.

The night shifts also require workers to spend time away from their own home and responsibilities. They might need to arrange and pay for childcare for their children.

For Deirdre McCann, a law professor at Durham University, the Uber and Mencap cases are examples of a wider phenomenon: employment practices that “drain waged-time from the working day” so that people are no longer paid or protected by employment law for all the work they do.

The aggressive use of zero-hour contracts is another route by which employers can make sure workers are constantly available without having to pay them during slack times. One contract I have seen between a farm and its seasonal labourers states that while “we are not obligated to provide you with any work under this contract or to provide minimum hours of work on any day or week, you must be ready to work on request”. As more people work from home thanks to the pandemic, the lines between being “at work” and “available” could become blurrier still.

McCann argues that “working time” should be defined not by the arduousness of the labour, but by the periods when the worker is “at the disposal of the employer”. The purpose, she says, should be to “recognise, compensate, and constrain periods that workers spend away from their families or other dimensions of their lives”.

Uber, however, has opted to ignore the Supreme Court’s view on working time. It plans to treat drivers as workers only for the time they are assigned to a trip. It is understandable that Uber wants to avoid a scenario in which drivers could log on at 4am to earn minimum wage for doing nothing. But there are more creative solutions than depriving drivers of pay for the roughly 40 per cent of time they say they spend between trips.

Mark Graham, a professor at Oxford university’s Internet Institute, said Uber could, for example, top up drivers’ pay to reflect the average amount of time they spend between assignments. “That could be one way of dealing with this, but they’re not even acknowledging it,” he said.

As governments around the world consider how to redraw employment laws for the 21st century, including for care and gig work, they should hold on to a core principle. If employers want to have people at their disposal, they should expect to pay for them.

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