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The law of unintended consequences (Member's Voice)

Sometimes some things don’t work out well – even though you are trying to do the right thing.  For example, in 1998 UK care providers were implementing the UK Working Time Regulations (putting into UK law the original EU’s1993 Working Time Directive) and also the UK’s National Minimum Wage Act 1998 (NMW). These two sets of ‘rules’ (on NMW and WTR) were seen as quite separate, and both tried to improve the position of poorly paid workers.  
 
Whilst the WTR came from ‘Europe’ and the NMW was a wholly UK idea, they  both raised questions about ‘when is an ‘activity’ classed as work?’ Over time legal judgements (and revisions to the WTD) slowly closed the gap between how these two sets of rules operated. Eventually, the European Court of Justice rulings made it clear that, as far as the WTD was concerned, for residential workers ‘sleeping in’ was ‘work’, and so any time spent sleeping in should be included under the WTR calculations.  This meant that it was no longer permissible for a worker to do a late shift, sleep in and then get up and work on the morning shift.   In several EU states (including the UK) this was not a popular outcome amongst staff, employers and people being supported and even now is widely ignored, as not being in the interests of any of the parties involved. (see EASPD EOHR paper Working Time Directive in Social Care and Support Services for Persons with Disabilities 2017)
 
However, deciding that sleeping in was ‘work’ under the (European) WTD rules did not automatically mean that it was also ‘work’ under the (UK) rules for the NMW!  UK providers wanted to know ‘do staff sleeping in have to be paid at NMW rates?’ Official Government guidance to employers was (until February 2015) that sleep-in hours did not have to be paid at NMW rates. Even as late as February 2016 HMRC (the UK agency that enforces the NMW rules) was telling its own staff that care workers were not entitled to the NMW whilst asleep.  After some Employment Tribunal rulings the Government has now had to change its position, harmonising the NMW treatment of sleeping in with the WTD.  Sleeping in is work. It must be paid as such (ie at NMW rates, or more) and be included in any WTD calculations over working hours.
 
The impact of the WTD and NMW rulings on the UK care sector has been immense.  Costs have increased and small residential settings (eg 3-6 people) with sleep in staff are finding it harder to survive.  Working either side of a sleep –in  (which many users and staff want to do, especially in personalised services) breaks the WTD ‘rules’.
 
Ironically, this ‘good idea’ of helping poorer workers has led to a crisis in the UK care sector because of the issue of ‘back pay’.  Everyone is now anxiously watching for the results of an appeal by Mencap, a large learning disability charity, about the requirement to pay NMW rates for sleep in staff.  This appeal is not because employers don’t want to pay – but because they can’t afford to. Employers are now liable for 6 years back pay for any NMW underpayment. The amount of back pay is unknown, but estimated at around £400m.  
 
 In the past the Local Authorities (LAs) who have legal responsibility for providing care services  have rarely funded providers to pay NMW rates to sleep in staff.  Competitive tendering has been used to drive down costs and government support for social care services run by LAs has been progressively reduced.   After years of cuts LAs are in their worst ever financial position (one LA has just been declared effectively bankrupt) and are unable to meet such a large back-pay claim from providers.  If the Mencap case confirms that NMW rates must be paid for sleeping in, then many UK care providers will face bankruptcy unless the government pays up.  Many services will close.
 
This was not the intended outcome of this laudable legislation on working time and minimum wages.  Who gains from such an outcome from this story of wanting to improve the lot of poorly paid workers? Not the (still) poorly paid workers – who will lose their jobs, nor the service users whose services will close and who cannot now employ their staff in the best manner to suit their needs.  Many voluntary organisations built up over many years of fundraising will simply shut down. It is truly a disaster waiting to happen.
 
Competitive tendering in times of austerity leads only to lower costs by cutting corners, lowering wages and service standards and this makes the sector less attractive to work in. Instead of this endless salami- slicing of costs, recognise and then pay the true costs of providing a service, or face the real costs many years later – as we are now having to do. 
 
Some good ideas have results which no-one thought possible, but let’s be quite clear where the blame lies – not with the WTD or the NMW – but with the approach of those in power who think that such services do not really matter and can simply be purchased like grass-cutting or photocopiers, where the lowest possible cost drives the result.  There is a clear message to all EU states - learn from the UK (at least in this matter!) – and don’t do it like this. 
 

James Churchill
Chair of EASPD’s Interest Group on Workforce Development and Human Resources
Director of Social Care Training ltd

 

Find the latest pdates on what’s going on in the UK here
 

Members' voice is an open space for EASPD member organisations to publish their opinion articles on our newsletter. This article does not necessarily reflect the official position of EASPD.