19 July 2018

Thousands of carers will lose out on expected back pay after a judge overturned the decision that workers should receive the minimum wage during sleep-ins.

The Court of Appeal ruled in a case brought by Mencap that social care workers should be considered to be 'working' only during the hours they spend awake, despite the fact that those required to sleep at the homes of service users must be 'on call' during the night and are thus prevented from acting as if they were 'off work'.

In 2012, 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. As a result, workers were owed a total of £400 million.

In 2016, HMRC began to enforce this aspect of the law, but in July 2017, the government agreed to an 'amnesty' for the thousands of employers who owe their staff back pay as a result, following representation from employers that to compensate workers would break the back of the industry.

As detailed in the Institute of Employment Rights' recent report 8 good reasons why the adult social care needs sectoral collective bargaining, the social care sector is one of the largest industries in the UK – exceeding the size of both the energy and food and drinks sectors. Its workers are overwhelmingly employed on precarious zero-hour contracts and many do not make the minimum wage when travel time between service users and sleep-ins are accounted for.

Unison, the union that brought the initial case that awarded the minimum wage to care workers, has said it will consider challenging the new ruling at the Supreme Court.

Its General Secretary Dave Prentis, said: "This judgment is a mistake, but let's be clear where the fault lies. The blame for this sorry state of affairs that's hitting some of the country's lowest paid workers must be laid at the government's door.

"Ministers are so consumed by Brexit that they're ignoring huge problems around them. Social care is in crisis, and this situation wouldn't have arisen if the government had put enough money into the system and enforced minimum wage laws properly.

"Sleep-in shifts involve significant caring responsibilities, often for very vulnerable people. With too few staff on at night, most care workers are often on their feet all shift, only grabbing a few minutes sleep if they can.

"That's why it's such a disgrace that workers have been paid a pittance for sleep-ins – with some getting just £30 for a ten-hour shift.

"As a society we should value care staff and the work they do, but unfortunately we don't. After this judgment who could blame care workers for leaving in their droves."

In 8 Good Reasons the adult social care sector needs sectoral collective bargaining, author Dr Lydia Hayes of Cardiff University investigates the damage that has been done by insecure and low paid working norms in the industry.

As well as increasing stress on workers, the lack of support they receive is also dangerous for service users, who do not necessarily know who their carer will be from one day to the next, and who research has shown are more vulnerable to abuse now that the workforce has become disposable.

Lydia recommends that sectoral collective bargaining is reinstated in the social care sector, which would allow workers and employers to agree acceptable wage and conditions floors that would apply across the industry and can be built upon by further negotiations at enterprise levels.

This system is not new, she explains, as before the social care sector was privatised, workers were covered by collective agreements negotiated with local authorities. Further, there are modern examples across the world of countries and states that have seen vast improvements to social care services after they promoted negotiation between workers and employers.

Click here to read more about 8 good reasons adult social care needs sectoral collective bargaining