04 October 2017

A new report from think tank The Institute of Employment Rights, authored by a Cardiff University expert on labour standards in care work, concludes that establishing a sectoral collective bargaining process to negotiate workers' pay and conditions in the social care industry is the best way to prevent the exploitation of carers and improve the quality of care for service users.

This comes after the government announced the continued suspension of minimum wage law enforcement for social care workers on Thursday (28 September 2017), thus withholding money owed by law to thousands of low-paid workers.

Five years ago, a tribunal ruled in the case of Whittlestone v BJP Home Support that care workers' overnight shifts should be paid at minimum wage. Despite this, thousands of workers continue to receive a flat rate of £2.50-£3.50 an hour for sleep-ins. In 2016, HMRC began to enforce this aspect of the law, but the government agreed to an 'amnesty' for the thousands of employers who owe their staff back pay as a result, thus preventing low-paid workers from receiving the wages they are owed.

In her new IER report 8 Good Reasons Why Adult Social Care Needs Sectoral Collective Bargaining, Dr Lydia Hayes, Cardiff University, highlights this case as just one example of how individually enforced labour laws are failing care workers, and – as a wealth of evidence has conclusively shown – service users' quality of care is being negatively impacted as a result.

Her analysis draws on findings from an in-depth three-year study of 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 her 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.

Over the past decade, countless investigations and inquiries in the UK have evidenced that poor quality employment damages workers' capacity to provide good quality care. Nevertheless, issues of exploitative employment and inadequate – sometimes dangerous – care, persist, and the industry is in dire need of reform.

Dr Hayes recommends that the government promote a collective bargaining process between social care employers' associations and trade unions to agree labour standards that must be applied across the industry on such issues as pay, conditions and training – a tried and tested strategy that has already proved successful in similar economies across the world.

Her findings, in more detail, include:

• Adult social care is one of the UK's biggest industries – out-valuing the production and distribution of electricity and gas; and the food and drinks service industry. Social care nets £20bn for England's economy, and an estimated £40bn when its indirect impact is taken into account. The electricity and gas, and food and drinks industries are valued at £16bn and £19bn respectively.
• More people work in social care than in every food and drink establishment put together, and most of them are low-paid women. There are 1.55m care workers in England, compared with 1.3m in bars, pubs, cafes and restaurants; 1.1m in transport, storage and postal industries; and 1m in construction.
• Zero-hour contracts are the norm, staff turnover is staggering, and there is growing pressure to be self employed. Some studies have found around half of all new recruits quit within a year, and many of those interviewed by Dr Hayes said they felt forced to work directly for clients as self-employed carers in order to access work, but worried about the loss of legal protections they suffered as a result.
• Care work is increasingly complex and reliant on highly skilled professionals, but there is nothing to prevent employers from hiring workers with no previous experience or training. As a result, about a third of care workers do not even get basic induction training before being entrusted to care for vulnerable service users.
• There is conclusive evidence that poor-quality care is strongly associated with poor-quality employment for carers. Countless inquiries and studies have demonstrated this, but Dr Hayes also found in her own study that two-thirds of people think the standard of social care is inadequate in the UK; and an even larger proportion think politicians consider the welfare of older people a low priority.
• Individual employment rights have proved insufficient. Dr Hayes discovered evidence of employers misleading workers by telling them they do not have employment rights; a much lower level of enforcement of employment law by statutory agencies compared with other European countries; and government-sanctioned under-payment of the minimum wage for carers during overnight shifts.
• Sectoral collective bargaining has been successful in alleviating employment law issues in social care sectors in Australia, Canada and the United States.

Dr Lydia Hayes comments:

"Thursday's announcement that enforcement of minimum wage law for social care workers will be further suspended is clear evidence of why the individual enforcement of employment law does not work, especially for those in precarious, low-paid work like those in the social care sector.

"Today's system relies on workers understanding employment law in order to identify when their employer is breaking it, and thus begin tribunal proceedings. 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.

"Being a member of a trade union enables workers to identify and fight employment law breaches. However, 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. The structural problems in the sector require a structural solution and sectoral collective bargaining is an evidence-based way forward.

"Much modern research has shown that sectoral collective bargaining is the best way to introduce and uphold labour standards, and there is sufficient evidence from international models to show that it has been successful in alleviating problems in social care in other countries.

"We know that exploitative conditions for care workers leads to poor-quality care for some of the most vulnerable people in our society. My study showed that most people are convinced politicians place a low-priority on the welfare of our older people, and it is time the government proved them wrong by promoting and supporting negotiations between employers' associations and trade unions to start identifying and implementing reasonable standards for pay, conditions and training of care workers."

Dr Hayes' recommendations draw from and build on those put forth in the IER's Manifesto for Labour Law – an influential set of proposals for reform that informed the Labour Party's 20-point plan for a Fair Deal at Work in their 2017 General Election Manifesto.

- ENDS –

Note to Editors:

Contact Sarah Glenister: sarah@ier.org.uk

About the Institute of Employment Rights

The Institute of Employment Rights is a think tank for the labour movement and a charity. We exist to inform the debate around trade union rights and labour law by providing information, critical analysis, and policy ideas through our network of academics, researchers and lawyers.

We were established in February 1989 as an independent organisation to act as a focal point for the spread of new ideas in the field of labour law. In 1994 the Institute became a registered charity.

About 8 Good Reasons Why Adult Social Care Needs Sectoral Collective Bargaining

For over a decade, there has been a steady stream of evidence that employment in the social care sector comes with poor quality terms and conditions, low pay, and in too many cases, exploitation. This not only devalues and degrades the skills and labour of the industry’s two million-strong workforce, but is well-evidenced to have a dangerous impact on the care that some of our most vulnerable citizens receive. The sector also employs the largest number of women in low-paid jobs, adding to the gender pay gap. Despite countless inquiries and investigations, the same issues persist. It is clear that the industry is in dire need of reform.

In this booklet, Dr Lydia Hayes sets out the lessons learned from her interdisciplinary research into the sector, and builds upon the recommendations made in the Institute of Employment Rights' Manifesto for Labour Law: a comprehensive revision of worker’s rights to propose a sectoral collective bargaining structure for the negotiation of wages and conditions. Read more here

About the Manifesto for Labour Law

The Manifesto for Labour Law – 25 recommendations for reform – was drafted by 15 leading lawyers and academics from the UK's leading universities. It has been welcomed by major unions across the UK and the leadership of the Labour Party.

Shadow Chancellor John McDonnell has publicly announced that the Manifesto will be used as "the basis for our implementation manual" when it comes to reforming employment law under the next Labour government. Read more here