More than 600 low-paid care workers threaten strike action over wage cuts, as the row over minimum rates for sleep-in shifts draws on.
Unison members at Alternative Futures Group, a charity which employs 2,500 care staff, mainly in the north-west, are threatening an initial 48-hour walkout.
Some employers who had begun to pay the full national minimum wage 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.
That could leave workers could be out of pocket by as much as £40 a night.
Some local councils that commission care providers are also moving to cut their contract prices in line with lower rates.
AFG says it has spent more than £8m extra over four years in paying the minimum and can no longer afford to do so. “Now that the law has changed, we must now act to prevent further losses to the charity,” it said in a statement.
Unison says it has already forced the charity to improve a planned £40 flat shift rate to £60 in February and £55 in March, with a review to follow – although £55 would still represent a £15 pay cut.
Gavin Edwards, national officer at the Unison union, warned: “Local authorities and organisations providing care who are seeking to cut the wages of already low-paid care staff are behaving irresponsibly and storing up serious issues for the future.”
The sleep-in pay row has been going on for some time, but came to a head in 2016 when government guidance was changed.
Until then, it had said that minimum pay rates should apply only when a worker was “awake for the purposes of working”.
New guidance, revised after this interpretation, had been successfully challenged at employment tribunals, and said that a worker required to be on work premises was entitled to the minimum “even though they are asleep”.
Many, though not all, employers began to follow this revision. But the guidance has now changed again following a court of appeal judgment last July that overturned the tribunals.
The latest version states that minimum rates “must be paid for time when the worker is required to be awake for the purpose of working, but not for time the worker is permitted to sleep”.
As reported by 24housing, the appeal court ruling came last July in a case led by learning disability charity Mencap, which had warned it could be ruined by liability under the law for up to six years’ backpay for its care workers at full rates.
Unison is seeking leave to appeal the ruling to the supreme court to get a definitive decision, but a judgment would be unlikely before 2020.
Employers maintain they would be happy to pay full rates if funded to do so – though they remain deeply concerned about backpay liabilities estimated at more than £400m – but ministers have refused to provide councils with the cash for employers to pay the legal minimum, currently £7.83 an hour for adults aged 25 or over, through the night.
A flat sleep-in shift payment is typically £30 or £40, plus minimum rate for any time the worker has to get up to help a person they support.
In November, junior business minister Kelly Tolhurst told the Voluntary Organisations Disability Group – which represents non-profit employers – that councils “should not use [the appeal court] judgment to radically alter their fee-paying practices in an ad-hoc way”.
Instead, they should work with employers “to determine a fair rate of pay for sleep-in shifts to fit their local labour market conditions”.