03 November 2017

Lifting its recent amnesty on the enforcement of minimum wage for social care employers, the government has launched a new programme to encourage providers to provide back pay to workers that have been illegally underpaid.

Employers who have had complaints raised against them for underpayment of wages during sleep-in shifts will be invited to join The Social Care Compliance Scheme (SCCS), which would provide organisations with a year to identify their arrears and then three months to pay workers what they are owed.

Those employers that do not join the scheme will be targeted instead by the HMRC's normal enforcement regime.

Care workers' eligibility for minimum wage during sleep-in shifts was confirmed in case law five years ago in Whittlestone v BJP Home Support, but it was not until 2016 that HMRC began to enforce this aspect of the law.

In the meantime, thousands of workers continued to be paid just £2.50 - £3.50 an hour for overnight stays.

The government suspended HMRC enforcement action on the underpayment of wages in July 2017, citing concerns that the combined effect of wage arrears and financial penalties could be too damaging to the industry.

In our latest publication 8 Good Reasons Why Adult Social Care Needs Sectoral Collective Bargaining, Dr Lydia Hayes – an Cardiff University expert in the field – argues that the government's action highlights why individually enforced labour laws are failing to protect workers.

She comments: "The problem of labour standards abuse is sector-wide and structural within the UK’s social care industry. It cannot be fixed by individual employment rights, which are evidently meaningless without support from the government and enforcement agencies. Knowing they will not be penalised, thousands of workers are still being underpaid for sleep-ins by employers who can no longer plead ignorance to the law."

Her new IER report draws on an in-depth, three-year study she conducted into the experiences of homecare workers and the impact on their working lives of employment law failings and inadequacy. Dr Hayes’ conclusions align the findings of this study with existing evidence about the perilous state of the social care sector in the UK and make international comparisons to social care and employment models across the world.

"Today's system relies on workers understanding employment law in order to identify when their employer is breaking it, and thus begin tribunal proceedings," Dr Hayes explained. "Unsurprisingly, most non-lawyers do not have an adequate understanding of this complex and technical field, and my study uncovered evidence that employers are exploiting this.

"One homecare company I visited hung a sign above their front desk that said 'Do not ask for holiday, as refusal often offends', and workers for the company were routinely misled about their legal entitlements."

She concludes: "The structural problems in the sector require a structural solution and sectoral collective bargaining is an evidence-based way forward."

Click here to read more and purchase your copy of 8 Good Reasons Adult Social Care Needs Sectoral Collective Bargaining