Last week’s Appeal Court decision upholding an appeal from Mencap on staff payments for sleep-in duties in residential care is deeply disturbing. It raises fundamental questions about employment practices, staff terms and conditions, public sector willingness to pay for contracted services and, quite frankly, the values of some in the charity sector.
In some ways, one can understand why charities involved may be pleased with the court ruling – though this will be a short term gain - which overturned an employment tribunal decision that a Mencap employee should be paid for the hours she slept on night shifts as well as for those she spent awake and looking after residents. Many of them faced potentially severe financial problems, not least because payments were to be retrospective, but also because of local and central government’s unwillingness to make up the shortfall.
Staff also face serious financial loss too. Care staff on such duties cannot go off and do other work when they are being required to be on the residential home premises, in case they are required to undertake direct care duties. Trades unions are right to argue that this means that they are at work and should be paid accordingly.
Social care is in a financial crisis. For too many years, it has been under-funded and treated as the NHS’s poor relation. Social care providers themselves (most of the services are outsourced or spot-contracted) are also commonly underpaid for their services by local authorities and the NHS, and in many cases have been expected to subsidise the public sector, with the inevitable outcome that many providers have voluntarily withdrawn from the market, often unwillingly because of insolvency. Staff should not have to pay the cost of this shortfall.
Government should fund social care properly and provide local authorities with the wherewithal to do this. No employer, government or local authority expect staff to work for low pay and often appalling terms and conditions – with many on zeros hours contracts and pitiful pension schemes (when there are any). Under-funding can and has led to underperformance, low quality and serious risks for staff and service users alike. Staff should not have to pay the cost of underfunding.
There have been some strong interventions in recent weeks for core social care services to be financed on the same basis as the NHS. If the NHS can receive an additional £20bn, social care should receive an equivalent increase. As long as charities and, indeed, private sector providers play a significant role in social care, they should be entitled to fees and contract payments that enable them to provide high-quality services, employ and develop staff in ways that recognise their critical contribution, and make a reasonable return on investment.
Rather than challenging the employment tribunal, why did the charities not seek to challenge the government in court (or in the "court of public opinion") to find the required additional finance to enable staff to be paid for sleep-in duties on the same basis as for their other working time?
I know that providers did try, informally and unsuccessfully, to persuade government, but then turned to the courts to overrule the tribunal decision. I know from conversations with some of the charities involved that this has been a very frustrating time. They want to be good employers and to treat their staff well. Still, I question if this appeal was wise.
Quality social care depends on high-quality, motivated and well-paid staff. It should not be over-dependent on good will and voluntary (or, worse, involuntary) commitment of staff to regularly go beyond their contractual obligations. Of course, being professional and committed, many will do so, but this must never lead to unintended exploitation.
Good employer-employee relations are vital to good outcomes, especially in personal services such as social care. The Appeal Court decision has a real potential to damage these relations in some services. This is highly regrettable. Unison and other trade unions are rightly considering an appeal.
However, it is good to see the Voluntary Organisations Disability Group and others in the sector calling on the government to do the right thing and legislate to ensure that all workers are entitled to the national minimum wage, including those on sleep-ins. I would suggest that the call should be to fund at least the living wage not just the NMW and for adequate funding.
I sincerely hope that the charities involved and the unions (and hopefully local government) can find common ground on this and avoid a potentially damaging dispute. Charities rightly claim that they are driven by their values, and trades unions share many of those values and objectives. It is shocking that government might once again be forcing them to face each other in court. The long-term losers will be social care clients and users.
John Tizard (@johntizard) is an independent strategic adviser and commentator, and a former voluntary sector executive. He is now a trustee and chair