Government bows to care provider pressure over sleep-in payments

HMRC enforcement action suspended following care provider warnings of insolvency

Picture: Nicholas Bailey/REX/Shutterstock

The government has responded to warnings by care providers that HMRC enforcement action risked bankrupting the sector, by waiving fines related to backdated pay owed to workers for sleep-in shifts.

In what it described as “exceptional measures to minimise disruption”, the government also said it would temporarily suspend, until 2 October, all enforcement activity relating to pay for sleep-in shifts.

The decision comes in the wake of a tribunal ruling that residential care workers who routinely ‘sleep-in’ as part of on-call shifts should be paid the national minimum wage for those hours rather than a lower flat rate, as most traditionally had been.

Following the case, HMRC had begun demanding back payments of up to six years, which providers had warned could “collapse” a sector already facing an intense funding crisis.

Care sector bodies had been calling for an immediate freeze on HMRC action while clarity was sought on the issue, with guidelines on sleep-in pay issued by the government as recently as 2015 appearing to contradict the recent judgment.

A statement from the Department for Business, Energy and Industrial Strategy (DBEIS) said: “Social care providers play a vital role in supporting some of the most vulnerable people in our society and workers in that sector should be paid fairly for the important work they do.”

It added that the government “will continue to look at this issue extremely carefully alongside industry representatives to see whether any further support is needed and ensure that action taken to protect workers is fair and proportionate, while seeing how it might be possible to minimise any impact on social care provision.”

Martin Green, chief executive of Care England, a group representing care providers, said: “I am pleased that HMRC will not be pursuing care providers for sleep-in payments. However, this is only part of the problem and providers may be required to pay years of back pay to staff who have done sleep-ins.

“The government must come up with a long term solution for this issue of sleep-in payments, including clarification about how this issue will be treated in the future, and if they will not allow sleep-in’s,  then they must make sure that the additional costs of waking staff are included in commissioning fees.”

But Dave Prentis, the general secretary of Unison, which represents a number of care staff who work overnight shifts, slammed the decision as ministers “caving in” to employers and delivering a “huge blow” for low-paid workers.

“Each year, care workers are collectively cheated of £130m in wages, but this outrageous state of affairs has failed to prompt any meaningful reaction from the government,” Prentis said.

He added that there was “nothing” in the government’s plans setting out how to ensure care staff would receive back-pay.

“It sends out a message to care workers that they are of little value,” Prentis said.

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22 Responses to Government bows to care provider pressure over sleep-in payments

  1. Santino July 26, 2017 at 11:43 am #

    The statement from the Government includes the following but not shown in this article:

    Government reaffirmed its expectation that all employers pay their workers according to the law, including for sleep-in shifts, as set out in guidance entitled ‘Calculating the National Minimum Wage’.

    The Law was already there but HMRC has only recently enforced NMW Regulations, Expect ET claims to be make, The government has stepped back now from the discussions.
    So employees affected can bring a claim ( going back up to 6 years).
    Looks like the providers will have to fend for themselves and who need to speak to LA’s for proper funding.

  2. mary July 28, 2017 at 6:22 pm #

    some – maybe most – private care agencies already charge for night cover at minimum wage rates, even if the duties are simply to be there, and will probably not be called on. i understand both sides of the argument, but for those – many – having to fund care themselves, this makes it even harder for a carer to go away for a few days than it already is. the fees for a couple of visits during the day and an overnight ‘sleep-in’ can reach £200+, which makes a care home cheaper than home care – as no doubt local authorities will conclude when they consider their care budgets.

  3. Michael Woolfe July 30, 2017 at 6:25 pm #

    Hello, my name is and I have been a support worker for 2 an half years. I currently started of on £25 a sleep but the last few month it went up to £60 and dropped and then gone back up. From reading this message it seems that I can get back pay from when I was being given £25 for the sleep. If this is correct can your self or someone please advice me on what to do as my next step. Thank you

    • LH August 2, 2017 at 1:02 pm #

      Contact the trade union UNISON. You may be entitled in law to be paid at least as much as the minimum wage for your sleep-in shifts (£7.50 an hour if you are over 25 years old). If you have been paid less than your legal rights you are entitled for the error to be corrected for up to 6 yrs worth of prior service (in your case for the 2.5 years you have worked). You should join unison, they may be able to speak to your employer to reach a settlement or help you bring a claim at an employment tribunal.

      • Glyn August 7, 2017 at 1:00 am #

        I spent over 10 years with a care agency who refused to pay sleep – ins saying it was part of our job but THEY charged social services for night covery – they were collecting tens of thousands for doing absolutely NOTHING & I was not alone
        For the care firms to say they can’t afford to pay is utter garbage – they rant about wanting good staff & pay & treat them like slaves

  4. N Harris July 31, 2017 at 10:03 am #

    Care companies pleading poverty is a load of rubbish, the money they aren’t paying for sleep shifts just goes into their profits. My partner was owed £60K in unpaid wages from 19 years of service to a care home which had £250K in the bank – when we approached them for it they just took all the cash out in dividends, sold the business to a phoenix company & left us chasing the liquidator whilst they enjoyed the money !!!!

  5. Hayley Gillam August 2, 2017 at 9:18 pm #

    I have worked as a support worker for 7 years . 2 years ago we started getting extra money for sleeps . Obviously this was as someone went to court over sleeps. In our company.
    No one said why at time.
    Now we here we can claim back 6 years well 4 for us .
    The only thing is our company was bought by another last year so who is liable for this ? Will we get anything?

  6. Sheena August 2, 2017 at 9:25 pm #

    I’ve worked in residential childcare for over 12 years …… sleep in has been average of £25 which is way below minimum wage ….. can I claim it back. ??
    Normal 08.00 – 23.00 shift with sleep. However if kept awake after 23.00 no extra pay ??
    Considering I and others work with extreme challenging behaviour the rate of pay is diabolical anyway but to find out that sleep ins should be more money takes it to a limit. Without care workers there would be lots of children and adults on the streets.

  7. gavin copley August 3, 2017 at 12:42 pm #

    Hi,

    I worked as a support worker for 5 years from 2009 to 2014, I regularly worked sleep in shifts over that period, I no longer work in the sector but does this mean I will entitled to back pay for the sleep in shifts that I worked over this period?

  8. Sarah Brummell August 3, 2017 at 7:31 pm #

    Hi,

    I worked as a support worker for 5 years, and worked in a service doing sleeps at a rate of £22.50 per hour, going up to £26.00, I did this for a year (sleep rates are £30.00 minimum wage). I now work for a different care company as a care co-ordinator but does this mean I am still entitled to claim?

    It’s a shame because this was issue raised years ago, in an already low wage sector just means cares are going to become even more sparse, outrageous!

  9. Joan August 3, 2017 at 11:42 pm #

    I am still very confused i have worked in private residential care for over 10 years . Get 20.00 a sleep in .23.00 till 8 am So under NMW should i now recieve more money for my sleep in . And can i claim anything back i am in unison when i sopke to them they were very vague . Can anyone give me clear guidance thanks

  10. Jason August 4, 2017 at 12:19 am #

    I work with looked after children in a care home. Our directors and area managers will tell us what a difficult job we do and how much they appreciate us for doing it and so on and so forth. Although with a flat rate sleep in fee of £25 (for ten hours), they’re not exactly putting their money where their mouth is.
    Every working day we experience the most rude and violent behaviour you can think of. Coming from kids who didn’t exactly had the best start in life and definitely had no good role models. Yet like nurses and teachers we’re left out to dry and are time and again drawing the shortest straw.
    I understand that back pay could potentially bankrupt a company and no one wants that. But why not be pro-active and say: you know what, we’ll draw a line and from here on we’ll pay you the minimum wage for all your hours. Rather than wait for the inevitable and be forced by law.

  11. Jenny August 5, 2017 at 9:38 am #

    I am a PA employer, but I also work as a Personal Budget coordinator.

    I am happy that my own package has enabled me to pay well over minimum wage for every hour of my 24/7 package (but who knows what will happen)… But this is not the case for some people I support in my job.

    I have 3 clients with a 24/7 or “live-in” type package which definitely doesn’t equate to NMW for every hour … only one has an Agreed daily average contract in place with the PAs, even though it seems that their DP has been calculated in this way.

    Certainly the contracts provided to clients as standard to give to their PAs, I feel, do not give clarity as to whether it is “time-work” or “unmeasured work” for the clients with the 24/7 support… so I can foresee clients either being worried but not wanting to highlight this, or being faced by demands for back-pay from angry PAs.

    I personally feel that PAs should get at least NMW for every hour they are available – even if asleep- but I don’t think this is going to happen given the social care funding crisis and the clear policies of trying to decrease the amount of funded support people are given (going back to survival care) and referring for of non-funded options (voluntary sector support, reablement … and the Luke Davey case of justifying a cut as meeting a need!)

    Saying all this – absolute clarity is needed, otherwise there will always be ways to justify how paying less than minimum wage is not actually breaching minimum wage regs!

  12. Vernon August 5, 2017 at 2:42 pm #

    This is the Care industry equivalent of the Banking crisis. The “poor care providers” (the poor banks) will be bailed out instead of paying hard working care workers their due. ( people saving and depositing into said banks)
    Who would have supported the Banks if they put out half as much spin in the media as their care industry counterparts?

  13. Steve August 5, 2017 at 5:58 pm #

    Hi guy I currently work for a care company and look after a disabled lady one to one covering a 24hr shift including a 9 he sleep over and I get paid £7.50 per HR from 8am-11pm (15hrs) then £22.50 for the sleep over (9 hrs) what do I need to do to change things so get what I’m entitled to. I look forward to your reply .

  14. Kay August 7, 2017 at 1:28 pm #

    I worked sleep-ins for 15 years and never got paid more than £25 for 11pm – 7am. Will never get my rightful wages back as it was 10 years ago.

  15. Joan August 7, 2017 at 6:00 pm #

    I have contacted unison they have stated you can claim for NMW for sleep in . Also minimum of 1 year back pay . Plus the hours you are on sleep in should be encorperated in calculating your holiday entitlement which it clearly is not at the moment which is interesting . If this is any help to anyone

  16. jim chadwick August 8, 2017 at 11:57 am #

    i have been a support worker for nearly 12 years and have been tuped over 3 times my latest tupe was 1 June 2015 which gives me just over 2 years with my current employer, if the government makes care providers pay us 6 years back pay would i be able to claim from my previous employer regarding the outstanding 4 years back pay ? my point being that my position was not terminated nor did i resigne.

  17. Laura August 8, 2017 at 4:57 pm #

    I think it’s absolutely shocking that people are going to try and take care businesses to court over wages that they agreed to when they took on positions. No one was held at gun point and made to take a job. They applied, interviewed, and took on positions knowing full well what money was on offer?!?!…everyone is out to make a quick buck with no consideration of the consequences. I’m ashamed.

    I have worked residential child care for over 7 years, many many sleepins at 2 different companies, at a £30 rate that I was made fully aware of. I took home a better wage than most people I knew as I worked 15 hour shifts. Breaks were many and I got paid for going on holidays, watching TV, eating the company food (all with young people)…if I counted up the hours I worked where my job felt like work it would be few in a day. I was fully trained by my company and I have been supported throughout with lots of opportunities for progression.

    Companies are out to make a profit, but a great deal of hard work and a great many jobs are created as a consequence. People seeking back pay for something they signed to complete at a set rate is going to bankrupt the sector – that’s a fact. Residential care are already dealing with raising minimum wage on top of authorities shifting contracts to “cheaper” options in mutibedded units (with the focus completely going from high quality provision, individual needs and 1:1 responses) and local authorities constantly asking to review costings and bring these down. I work for a tiny company with a high quality service, we perform well and our children are very happy and don’t want to leave. I’m so saddened that high quality services are going to suffer, if not have to close, as a consequence of being forced to pay people to be asleep…everywhere I have worked we have been paid at our hourly rate from the second we are woken to when we go back to sleep again – even if that is throughout the night – consideration needs to be held of the wider effects.

    • Robert Hayes August 17, 2017 at 10:35 am #

      Laura,

      That is your position, and you should be grateful for the fact you appear to work for a respectable company.

      My wife took her position out of necessity. The hourly rate and sleep rate were a necessity. She needed a job and there were, at the time, not a lot of positions available. £17.50 for a sleep-in, where she was consistently awake, little training and no support from management.

      I’m sorry, but not paying a minimum wage is modern day slavery. We have a right to be paid for the work being carried out. Stating the knowck-on effect by claiming back-dated pay is the result of greedy workers is shameful! Why should the workers pay, with their time, for penny-pinching governements, local authorities and employers – many employers are paid for the sleep-ins and do not pass this pay on to employees, but pocket the profit.

      Service levels are already poor, with many incidents of 1:1 care requirements being ignored (even though they’re being paid for).

      I find your blaming employees for the conduct of their employers shameful.

    • Martin August 18, 2017 at 5:52 pm #

      So you are happy to see people payed below minimum wage?..??
      Joker

  18. Julie Hesford August 24, 2017 at 12:43 pm #

    I could only claim part of my sleep in money back because i had done alot of obertime for my young volleagues they have children so over xmas and holidays so i felt penalised for doing overyime disgusted