Last Friday’s High Court judgment in the case of Royal Mencap v Tomlinson Blake dealt a severe blow to tens of thousands of underpaid and undervalued care staff who were expecting back-pay for their work on ‘sleep-in’ shifts.
The case reversed previous judgments from 2014 which held that care staff should be paid the National Minimum Wage for time they spent on sleep-in shifts while caring for people, rather than at a flat rate (usually around £30 per night). The reality of these shifts is that while labelled a ‘sleep-in’, for the nearly 25,000 staff carrying them out, they are often anything but.
Care staff, often exhausted and working alone in an unfamiliar home setting, often get little sleep, particularly if they’re dealing with clients with mobility issues who need to go to the toilet several times a night; or if a vulnerable person they care for tries to get out of the house. They lie awake listening intently for any sign of movement, making proper sleep impossible. That these shifts weren’t historically paid the National Minimum Wage is shameful enough.
But now care staff won’t be paid fully for sleep-in time going forward, unless National Minimum Wage regulations are changed. This will undoubtedly make it even harder to recruit care staff for these shifts at a time when they have never been needed more: according to Skills for Care, the care worker vacancy rate is 26.6%, with 90,000 roles unoccupied at any one time. It could also prompt current staff to move away to other roles which are better paid.
The case has brought a reprieve to care providers who were being pursued for six years’ worth of back pay by HMRC, after a tribunal judgment in 2014 led to a change in Government guidance.
Charities who provide social care to people with learning disabilities had said that their collective liability could exceed £400million; to say nothing of the liability facing tens of thousands of personal budget holders who paid staff directly for care.
Care providers said they could go to the wall or reduce the services they provide, making many people with personal budgets bankrupt, with disastrous consequences for vulnerable people who depend on care services.
But the judgment has struck a damaging blow to a sector which already struggles to recruit and retain staff. Care staff are some of the lowest paid workers in the country and many will be bitterly disappointed that they will not be getting the money they have been promised. Had the Government done the right thing and paid the back-pay bill, the case would likely have been withdrawn.
Labour recognises that good care rests on having care staff who are well-paid, properly trained and who have the good working conditions needed to deliver care. Care staff should not be punished financially for this Government’s relentless underfunding of social care. Having chronically mishandled this issue, it’s time that Ministers acted in the interests of care staff and the people they care for.
Instead of being paid rock-bottom rates, dedicated and hardworking care staff should be paid at least the National Minimum Wage for sleep-ins. That care staff should be paid for sleep-in shifts has united care providers, the trade unions Unison and GMB and Labour.
It’s time the Government demonstrated some leadership and changed the regulations on National Minimum Wage to show care staff that they matter.
Barbara Keeley is the shadow mental health and social care minister and Labour MP for Worsley and Eccles South