Temporal Casualisation and ‘Availability Time’: Mencap, Uber and the Framed Flexibility Model

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 Classification: J45, J80, J81, J83, J88, K31