Social care providers want to do “all they can” to pay their staff appropriately an employment lawyer has said, as the row over minimum rates for sleep-in shifts heats up.
Last week, Home Care Insight reported that carers who work for Alternative Futures Group are voting on whether to take strike action in a ballot organised by their trade union, Unison.
The union said staff are facing significant cuts to their incomes due to AFG’s plan to cut back on top-up payments on workers’ sleep-in shifts.
But Matthew Wort, a partner at Anthony Collins Solicitors, which specialises in health and social care issues, argued that providers such as AFG are caught in a “difficult situation” due to funding challenges.
“The care they are delivering is funded by local authority commissioners who are seeking to manage their own budgets,” he told Home Care Insight.
Some employers, such as AFG, who had begun to pay the full national minimum wage (NMW) for hours spent asleep by care workers – in response to tribunal rulings and official guidance – are going back to paying a lower flat rate following a contrary judgement in the Court of Appeal.
But according to Wort, a number of local authority commissioners “never paid providers sufficient to pay the NMW” even when case law suggested they were entitled to be paid for every hour of a sleep in.
“Now the law is clear that time spent sleeping during a sleep in is not normally working time some commissioners have made clear they will not want to fund providers sufficient for them to pay NMW taking into account every hour of a sleep in from April 19,” he said.
“Social care providers want to do all they can to pay their staff appropriately and we expect providers will only be changing their arrangements where necessary due to funding challenges or to ensure internal pay equity for work that is being delivered,” continued Wort.
Anthony Collins solicitors represented Care England, a representative body for independent care services, when it worked with social care charity Mencap to successfully reverse an Employment Tribunal judgement made in 2016, which found that Mencap should have paid carer, Clare Tomlinson-Blake, the full minimum wage during sleep-in shifts.
The ruling would potentially have led to care providers having to pay back pay and penalties to large numbers of staff, which care charities estimated would cost the sector £400m and result in some organisations going bankrupt.
Mencap states on its website that since April 2017, it has ensured that all of its support workers carrying out sleep-ins are paid in line with the National Living Wage requirements and despite the Court of Appeal ruling “we plan to continue this payment”.
The company adds that it “did not want to go to court about back pay”, but it “had no choice”. “We simply could not afford it and the law was so unclear,” Mencap says.