Hundreds of UK care workers threaten walkout over wage cuts

More than 600 low-paid care workers are this week voting on strike action in response to moves by employers to start imposing wage cuts in the row over minimum rates for sleep-in shifts caused by protracted legal wrangling and indecision in government.

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. 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 rumbling in the care sector for years, 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 [pdf] 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”.

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.

Lifeways Group, a company employing 10,000 people across the UK, has already reverted from paying the full minimum to its staff to doing so only where the commissioning council undertakes to meet the cost. Adam Penwarden, the group’s communications director, said paying the minimum between July 2017 and October 2018 had cost it £5m that had been unfunded by councils: “We are between a rock and a hard place, but we can’t pay money we haven’t got.”

Windsor and Maidenhead council, which is Conservative-controlled, has said in a letter to employers, seen by the Guardian, that it wants to revert to paying them a flat £57.80 for each sleep-in shift. Workers will receive perhaps £45 of that.

A spokeswoman for the council said it was “in discussion with our providers regarding current payment terms following the recent ruling”.

Tory-led Lancashire will vote next month on plans to move to a flat shift payment of £59.16 to employers, falling to £47.43 in October. After allowing for employer national insurance and pension costs, this equates to wage payments of £45 and just over £36 respectively.

In a letter last November to the Voluntary Organisations Disability Group, representing non-profit employers, junior business minister Kelly Tolhurst said 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”.

Barbara Keeley, Labour’s shadow social care minister, called on ministers to take responsibility for what she called the sleep-in pay “injustice” and to ensure that shifts were paid at full minimum wage.

“This latest blow inflicted on care staff adds insult to injury and will simply drive workers away from the sector when they have never been needed more,” Keeley said. “Vulnerable people with care needs will pay the price.”