You probably saw the Facebook posting by Change Maker Kate Westhead that updated us on the Court of Appeal ruling overturning a decision that those on sleep-in shifts should earn a minimum wage.
The judgement can be found here http://www.learningdisabilityengland.org.uk/wp-content/uploads/2018/07/Judgement.pdf
The judgement stated that employers do NOT have to pay six years back-pay and that now employers only have to pay ‘waking’ hours (ie. when people are awake and working at night and not sleeping).
The independent states that two-thirds of employers in our already struggling sector would have faced insolvency if they had had to pay this back pay (https://www.independent.co.uk/news/uk/home-news/sleep-in-carers-court-appeal-mencap-million-back-pay-charities-learning-disabilities-a8445391.html).
There are debates on this judgement going on around the country. We are keen to signpost YOU to some of these debates so that you can form your own thinking on it.
So below are some links to different views being presented by different people:
MENCAP’s opinion:
“The Court of Appeal has today handed down its judgement in two cases, one of which involves Royal Mencap. These are representative of many similar cases in the care sector. The Court’s decision has removed the uncertainty about how the law on the National Living Wage applies to sleep-ins. The prospect of having to make large unfunded back payments had threatened to bankrupt many providers, jeopardising the care of vulnerable people and the employment of their carers.
Many hardworking care workers were given false expectations of an entitlement to back pay and they must be feeling very disappointed. We did not want to bring this case. We had to do so because of the mayhem throughout the sector that would have been caused by previous court decisions and Government enforcement action, including serious damage to Mencap’s work in supporting people with learning disabilities.
What is clear though, is that dedicated care workers deserve a better deal. They work hard and support some of the most vulnerable people in society, but many are among the lowest paid. We and many other providers have been paying for sleep-ins at a higher rate for over a year now, and we intend to continue despite the Court’s decision. We now call on Government to fulfil its responsibilities by legislating so that all carers are entitled to this, and their employers are funded accordingly. We also call on Government to ensure that the social care sector and, in particular, the specialised support that is required for people with a learning disability is properly funded and its workers are paid what they deserve in the future.”
Matthew Wort, partner at Anthony Collins Solicitors, which acted on behalf of Mencap and Care England, which represents care service providers, said: “The magnitude of this ruling should not be underestimated, particularly when the care sector is already forecast to face a £2bn funding gap by 2020.
Matthew Wort, partner at Anthony Collins Solicitors, which acted on behalf of Mencap and Care England, which represents care service providers, said: “The magnitude of this ruling should not be underestimated, particularly when the care sector is already forecast to face a £2bn funding gap by 2020.
“Our argument was clear: under the current national minimum wage rules those undertaking sleep-in shifts should not be considered as working while asleep.”
Unison opinion
“What is clear though, is that dedicated care workers deserve a better deal.” Trade union Unison supported the initial tribunal against sleep-in rates and said it was a “disgrace” that carers would continue to be “paid a pittance” for the significant responsibilities of the role.
“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,” said the union’s general secretary Dave Prentis.
Community Living Magazine opinion:
“Thank goodness for Mencap’s appeal on #sleepins so that they will be paid now for the waking hours and a flat rate back for sleep-in away from home. People were not asking for being paid the hourly rate to sleep & it has had the effect of skewing pay and its holiday entitlements etc. Learning disability services’pay & conditions – a generally better-paid job recognising the complexity & responsibilities of working alone often in small community services – have been pushed down to the lowest minimal wage rate in too many agencies by both austerity freeze and the vastly increased sleep-ins (not paid fully by many if not most LAs) It also has led to the burgeoning of block congregated housing so the costs can be shared. I
In the light of the recruitment crisis despite the better sleep-in rate, can we hope that agencies will now negotiate a better hourly rate so they can pay staff a better rate again and maybe some reversion to community services IN the community not set apart? Worst would find support staff losing the sleep-over enhancement with no enhancement of their day rates. There’s talk of #Unisonappealing to the supreme court but better would be them negotiating better pay rates for people for the work they do … h
Learning Disability England opinion:
“The response to the issue of sleep-in payments from the government feels like a delay rather than a solution. Support workers must feel very undervalued by this response and support providers that based support packages on the fact that overnight support will cost less will be worried about this response. I am particularly concerned for people who manage personal budgets and smaller and medium providers without the means to pay years of back pay. The real issue of course is how social care is funded and the sleep-in issue is symptomatic of a sector that has to bargain not to pay properly for one of the most responsible roles in our society, when we ought to be focussing on paying support workers properly for the work they do. To achieve this we need much greater investment in social care.”
Claire Crossley, LDE family representative and personal budget holder
Claire says ‘the lack of value and pay for essential care that is the difference between being alive and actually LIVING. We need a national standard procedure that all local authority’s agree to follow so that we have better processes and rates of pay including pensions which is imperative for personal budget holders to operate within the law’.
VODG (Voluntary Organisations Disability Group)
“There are no winners from this decision. Now the government has a chance to do the right thing – enshrining and supporting the NMW by ensuring legislation is clear that all workers are entitled to the NMW and funding all essential services at this level.”
BBC opinion piece:
Independent newspaper piece:
Solvesleepins Alliance
The #SolveSleepIns Alliance, comprised of the Association for Real Change, Care England, Learning Disability England, Learning Disability Voices and VODG, remains committed to paying workers fairly and ensuring care services are funded properly so they can continue to function at the high level people who rely on care services depend on and deserve.
The reality of life on low pay for people working in social care who have some of the most important roles in our society. We need to campaign for a better deal with and for them.
Let us know what YOU think by emailing sallyw@paradigm-uk.org Get YOUR voice heard in the debate!
Comments
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Kate Westhead Happy appy appy.
Will be interesting to see what companies do now though as they did raise the sleepin rate. …See MoreMavis Gatsi Chitsaka Personally I never expected to get the back pay and I know of colleagues who’d already done their calculations on what they were expecting to get, I’m happy with this decision as it definitely would have destroyed a lot of services for the People we su…See More -
Janine Thom Personally, having worked for Mencap for a very long time previously and doing a lot of very stressful sleep ins (i.e not sleeping) and having to fight to be paid my hourly rate, I do firmly believe that sleep ins should be paid at NMW for all provider…See MoreHarry Lemon Amen sister!Janine Thom And from reading on Twitter, a lot of people are very angry at Mencap because they feel they have fought against their own staff and have highlighted the very high wages that the people at the top get. I don’t know exactly how distribution of funds wor…See MoreChris McPolin It wasn’t so much about back pay (although the companies have knowingly and without guilt been under paying ) but more about showing that staff are valued. They are clearly not. The times / workforce are changing. After 32 yrs in this profession, I no longer work for free.
