Race against time

Hear the phrase “sleep-in” and you would be forgiven for longing
for a lazy Sunday morning in bed. But, for residential social
workers, a sleep-in is nothing of the sort. Rather than relaxing,
sleep-ins – night shifts where staff “sleep” at the residential
home – can be filled with constant interruptions and demands from
the young people or adults in their care.

Sleep-ins are part of a residential social worker’s life, but there
have been rumblings of discontent for more than 10 years. These
rumblings could be about to turn into an explosion as the European
Commission is consulting on issues around the European working time
directive which sets out basic rights and protections for
workers.

This follows the Jaeger case in Germany and the Simap case in Spain
in which the European Court of Justice (ECJ) concluded that
sleep-ins are time spent working and cannot be classed as rest
periods because a worker is on call at their place of work.

As a result of the Jaeger case, sleep-ins now count towards the
48-hour weekly limit on working time. This could mean that many
social services staff who were previously thought to be within the
limit may now be working too many hours. That in itself may not
have been too great a problem as most people would probably sign
the opt-out clause, where they agree to work more than 48 hours a
week.

However, the opt-out’s days may be numbered. The European
Commission believes its use has diminished the directive, which is
there to protect the health and safety of workers, and is
considering whether to end it. The UK is the only country in Europe
that has used the opt-out extensively and is the only one whose
working hours have increased.

Joan Seaton, head of employment relations at the Employers’
Organisation, says: “This would mean that to maintain the same
level of service authorities would have to employ more staff, which
would be costly for a cash-strapped service. This is assuming that
they could recruit more staff of course, which is already a
problem.”

Another issue arose from the Jaeger judgement. Under the working
time regulations, which implement the directive, all employees must
have an 11-hour rest for each 24-hour period they work. There is
flexibility for organisations which require continuity of service –
and this would include residential care homes, says Seaton. In such
cases, the employee does not have to be provided with an 11-hour
rest break provided they are compensated for the rest that they
could not take. So, if they had nine hours’ rest one day, they must
be given another two hours’ rest in compensation.

Seaton says: “There is no time limit in the directive or the
regulations as to when this compensatory rest must be given and the
view has been up to now that employers are complying with the
regulations if they provided it within a reasonable time.”

However, the ECJ held that compensatory rest must be given before
the next period of work after that which deprived them of their
full rest period. This has huge implications for rota systems, she
says. For example, an employee may be required to work an
eight-hour shift between 3pm and 11pm, sleep-in between 11pm and
7am and do another eight-hour shift between 7am and 3pm. Under the
new interpretation of what constitutes working time, the worker
will have worked for 24 hours and will have had no rest
period.

The ECJ’s judgement questions whether this shift system can
continue because the worker’s rest period should have started at
4am – during the sleep-in and after 13 hours at work. If each of
these shifts was seen as a separate period of working the
compensatory rest should be after the sleep-in and before the
employee starts the next shift at 7am. This would prohibit the
employee working until 6pm and rotas would have to be changed.

Seaton says: “This could be costly and disruptive to the service,
as contracts may have to be changed and workers may not want to
have to work a more dispersed working pattern. This judgement could
have the effect of making such jobs even harder to fill.”

However, there is a glimmer of hope. Some observers argue that
there is a different slant on the ECJ’s judgement. The 24-hour
period could be seen as one period of working and therefore the
compensatory rest would have to be provided at 3pm. This would
probably fit in with existing rotas and should not cause any
problems.

Seaton says: “This judgement has meant that the issue of the timing
of compensatory rest has become uncertain and potentially a
significant drain on resources.”

The European Commission finished consulting on the first two issues
at the end of March but the issue of the 11-hour rest period was
not included. The Employers’ Organisation questioned all social
services directors on the problems that might arise and their
responses were submitted to the commission during the consultation.

A rough estimate suggests that implementing changes could require
more than 6,000 extra staff and cost up to £110m. “This
relates only to the direct provision of services,” says Seaton.
“Most residential care is provided by the private sector where the
impact may be greater.”

If the European Commission does resolve the issue it will be a
relief, says Bill McKitterick, co-chair of the Association of
Directors of Social Services’ human resources committee. He is not
opposed to sleep-ins themselves, saying: “It’s about not doing
excessive hours. If staff are disturbed during the night it’s down
to the manager to give them some sort of relief, so that they go
home before the end of their morning shift.”

McKitterick believes there are advantages in residents of
children’s homes having the same staff putting them to bed and
getting them up in the morning. “Too many staff coming and going in
a child’s life is not good. And there can be benefits in a small
home for some staff to go to bed too so that the whole home settles
down for the night.”

That may be so, but there are others who believe that the system of
sleep-ins is inherently dangerous. Frank Higgins is one. Now a
personal adviser to a local authority leaving care team, he was a
residential social worker. Two years ago he won an employment
tribunal case after he was sacked by Stoke-on-Trent Council. He
complained that he was too exhausted to do night shifts in a
children’s home and he was offered a lower paid alternative job,
which he refused. He won his case for unfair dismissal and breach
of contract.

Higgins says: “Sleep-ins usually mean that two workers go to bed,
in effect leaving one person on duty alone at night. I asked for a
risk assessment from the council citing that, plus saying that
staff were not getting enough sleep – doing in effect three shifts
in a row and then driving home.”

When Higgins complained that this was a health and safety issue he
was told that it was a nationally agreed shift pattern. “Just
because everybody does it, does not mean it’s right,” he says. He
says he hasn’t done a sleep-in for five years and will never do one
again, adding: “Lack of sleep can create a volatile
situation.”

Much hangs on the results of the European Commission’s
consultation. But it is paradoxical that an initiative to protect
staff from excessive hours may trigger a crisis with a lasting
impact on employees’ patterns of work and employers’ recruitment
difficulties.