The government has delayed its decision about whether to support care providers in paying owed sleep-in payments to care staff by a further month.
During this time, until the beginning of November, providers will not be subject to enforcement by HMRC for not paying the minimum wage to staff on sleep-in shifts.
The government has said the decision would “minimise disruption” to the sector while it decides whether the industry needs further support. This could involve the government providing the sector with money to fund backpay though any such support would need to comply with European Union rules on state aid to private organisations.
The issue of backdated payments for employees of care providers doing sleep-in care services arose following an employment tribunal in May, which ruled that workers were entitled to the national minimum wage for sleep-in hours, rather than a fixed rate.
£400 million
Following the tribunal, the government has waived historic fines for providers found not to have paid staff the minimum wage for sleep-in shifts up to 26 July 2017.
It also suspended HMRC from enforcing back pay and the minimum wage in the care sector for sleep-in shifts until 2 October while it worked out what impact it could have on the stability of social care. This suspension has now been extended for a further month.
Charities estimated this tribunal ruling could leave care providers needing to find £400 million to pay staff for backdated payments over the past six years, while also leaving a £600 million funding gap for payments over the next four years.
The government said the one-month delay would allow it “to establish how providers’ back pay bills will affect vulnerable people’s care”.
“The evidence base will also ensure any intervention is proportionate and necessary and could be required to satisfy EU State aid rules on government funding for private organisations,” the statement said.
“During this temporary pause, the government will develop a new enforcement scheme for the sector to encourage and support social care providers to identify back pay owed to their staff. This will help to minimise the impact of future minimum wage enforcement in the sector while seeking to ensure workers receive the arrears they are owed.”
‘Uncertainty and anxiety’
Glen Garrod, vice president of the Association of Directors of Adult Social Services (ADASS), welcomed the extension, and said any retrospective claim would “seriously threaten” the care market’s sustainability.
“Any potential retrospective claim could severely impact on the care of thousands of older and disabled people and amplifies the overarching need for an urgent, long-term solution to the sustainability of the care market, and a speedy, fair and consistent solution to the issue of sleep-in payments that is fully funded by government. We would welcome clarity and a resolution of the situation as soon as possible.”
Mencap, the charity at the centre of May’s tribunal ruling, said the government’s announcement was “disappointing”.
Derek Lewis, chairman of Mencap, said the delay would leave service users subjected to “more uncertainty and anxiety” as providers were forced to delay essential investment and local authorities struggle to convince providers to take on new contracts.
“It is nevertheless encouraging that the government appears to accept the need to support the sector in dealing with the £400 million back pay liability. It remains essential that the sector receives full funding for this liability to avoid unacceptable harm to people with a learning disability and insolvencies among providers.”
Unison general secretary Dave Prentis said the extension was a “green light for dodgy employers to carry on paying illegal wages without fear of ever being punished”.
“While there may be some sympathy for charities who owe their sleep-in staff money for not paying the minimum wage when they should have been, many care providers are private equity-backed companies that can well afford to pay up,” he said.
“No government or employer should be above the law. By suspending enforcement, we have grave concerns ministers may well have been acting unlawfully and using powers they don’t have.”
Martin Green, chief executive of Care England, said: “We will continue to work with the government during this extension period with the aim of seeing back pay liability fully funded. However, we must see this issue resolved and are disappointed that the government has not yet made a decision. We also need clarity on the future and how it will be funded. Providers and the people they care for need certainty”.
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Hi
Are residential care workers for challenging young people going to be included in the hourly sleepin pay???
I work in the care sector and started my appeal in 2015. On the Internet the company I work for states they are now paying the correct NMW rate regarding the sleep ins, and I can asure you they’re not. A lot of care companies make a lot of profit and have done over the years but now they need to pay up instead of pleading poverty.
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 !!!!
It’s is only fair that we get paid correctly.if we had been from day one then there would be no issue of causing the care sector to be struggling.its not our problem
Will a decision be made in November, and yes I agree with the above comments NMW is not being paid.!
The company I work for is not paying sleep-in rate yet and is trying to remove a lot of benifits from our contracts that leaves workers worse off. What crazy is that they are not paying the new sleep-in rate until we sign the new contract so not only are the withholding wages but trying to blackmail staff in to signing a new contract in order to get paid what we are owed!!! Is that not an illegal act in itself?
They are currently breaking the law, don’t sign the new contract and take them to a tribunal
My employer is currently paying as much of the sleep in pay as they can within our salary.
They do this by pretending we are paid minimum wage for our contracted hours which is less than our contract states, then fit as much of the living wage uplift as they can into the rest of our salaries.
We earn the same for doing our hours and 4 sleep ins as we would just doing the hours without the sleeps. So in affect we need to work 4 sleepins at at lower rate before we receive the full uplifted pay for sleep ins.
I don’t understand how this can be legal as our contract states we are paid a wage that is more than the minimum. Surely they need to formally change our contract if they wish to work it out like this.
Side note- When suspended we are paid our basic salary and NOT sleep ins. Meaning they recognise a clear technical difference, between salaries and sleep ins, in this instance. Yet they are joining them when calculating our pay each month. This seems to an inconsistent approach towards looking at the way they work out our pay.
This is illegal – you should be paid the NMW for all the hours – take them to an employment tribunal
They are paying national minimum wage for all my hours, that’s the problem, I should be paid more for my contacted hours as my contract states, and minimum for the sleep in hours uplift
N,
It is not true that you need to be paid NMW for all hours worked. An employer can look at your blended hourly rate across a pay period. So, if you earn (say) £8.50 per hour for standard care hours, the sleep-in can be paid below NMW as long as total pay divided by total hours over a pay period equates to NMW.
I have requested backpay for sleep in duties carried out over the past six years,my company took my contracted hours,added them to my sleep in hours(these are bank shifts) averaged out my wages over each month and came up with £300 !! surely this cannot be correct as my sleep in hours are nothing to do with my contracted hours? any advice?
All care workers are covered by this law
The law only requires the average rate paid for all hours worked to be at least the minimum wage, so if you get more than the minimum for some hours you can get less for other hours
How can they get around the fact our contract states our hours and the salary attached to them. You can’t pretend it doesn’t just because you want to change the maths.
On the flip side can they go to workers that didn’t do sleep ins and ask for anything over minimum wage to be returned? That’s in affect what they’re doing to the ones that did by working it out this way
I would also like to know the answer ! One of my co-workers is getting more an hour for sleep in duties due to the way the company is working this out. Surely we should all get paid the same for a sleep in
At what point is anyone going to raise the thorny issue of benefits? There are a lot of people working in the care sector who can only work 16 hours so they can claim top-up benefits. As sleep-ins are not treated as working hours (according to the government at present) then they don’t have to be declared, so if you do 16 hours work and 2 sleep-ins you could actually be working 32 hours a week and getting paid for 32 hours plus getting benefits. Problem with that is if the government agree that sleep-ins are working time then there will be a gigantic shortfall in staff available to work as the sleep-ins would have to be declared as working time.
This is a crazy minefield!
Chris M that’s exactly what the company I work for is doing!! Takes the utter piss
And there will be a massive recovery from those people claiming tax credits for over payments of tax credits. If there is any back pay awarded we’ll be paying it back to tax credits and HMRC because we would not have been entitled to tax credits on increased wages……..look out!
Many large companies that are paying dividends to shareholders are still not paying minimum wage for sleepovers. I work for one and still only get £28 per sleepover and cannot leave the premises.
They have profited on the backs of workers. Full stop.
These companies will not pay the correct rates until HMRC comes knocking on the door and then they will pay up as they do not want HMRC opening a can of worms in their accounts.
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 !!!!
Direct payments means those disability people receive a set amount to pay out to the staff they employ, no profit no reserves.No agency. what are they going to do.???????
Not one person has mentioned any empathy for those learning disability people affected.
what will happen next, the staff up nearly all night will complain they should receive more for being up all night compared to those that sleep all night.
Working tax credit will have more people applying because two nights and one day will be enough to apply.
Working nights you need to go to bed the next day and cant work for 12 hours, why should sleeping staff get the same pay , HAS THE WORLD GONE MAD,
Learning disability people will lose there chance to live independently because there will be no money to fund care. How selfish. Stop and think
Nick it is not selfish. You need to stop and think. These people are away from their own home family and bed to look after someone who they are not attached or related to.IT IS A PAID JOB , they are not doing it for the love of it, so why should they not be paid for it. Do you work and if you do, would you not expect to be paid for every hour that you work. I work for a care company supporting people to live in their own home. Our shifts usually start at 2.30pm end at 10pm sleep and 7.15- 2.45 the next day. I am away from my home and family for over 24 hours. I get an hourly rate and £33 for the 10 hour so called sleep. It is very rare that you actually get a full nights sleep. We are not allowed to leave the house, drink alcohol or take drugs (not that I would want to even if I was not doing the sleep) We do not get a break in those 24 hours, we can not go and have a relaxing bath, make a meal and sometimes you cant even go to the loo without being called. With the amount of sleep ins that I do a month and with my hourly rate now being averaged out to cover the 80 odd hours I work doing sleepins I am now on minimum wage. Asking for this money has nothing to do with being selfish.
Will be interesting to see how local councils deal with this . I work for one, do sleep ins and despite being asked they are simply ignoring the issue at this stage
Our company says sleep in pay is included in our salary. However depending on hours worked effects the number of sleep ins you are contracted to do. So it means that when it is all worked out some staff with the same job and responsibility are on a lower rate of pay than others. Can anyone advise if this is legal ?
I used to work sleep in’s 6 years ago in till
Last year but no longer work for the company. Would I be able to be refunded the entitled NMW per hour for the shifts I completed?
I had a contract with Salford pct till May 2015 then we merged to Salford city council,we are now a mutual company with council contracts till2020,are we entitled to back pay as we where only paid £32 per sleepin,would they owe 6yrs back pay?when should it be paid?
Yes I think you would but only if when working out the rate for whole shift including sleep in pay and waking hours it averages at less than national minimum wage
The sleeping period was 11pm to 7am,so 8hrs per sleepin,unison rumours are we are not entitled to any payments,do you know who I can contact for more information regarding this issue,thanks for your reply earlier.
I work for a care company and I work 24 hour shifts looking after a disabled chap that requires assistance to live independently in his self contained flat. My shift starts at 8am in a morning and I’m paid £8 per hour until 11pm (15hrs) and then I’m on a sleepover from 11until 8am (9hrs) which I get paid £24 for the sleepover I can’t leave the premises during the sleepover as I’m responsible for the care of the chap I look after and I’m woken 2-4 times during sleepover as he requires transfering in and out of bed , requires the toilet , may need covering back up as he often loses his quilt and pillar ,require medication or a drink and may want to get up early and want washing ,dressing and feeding his breakfast before 8am. What should I be actually paid for and should I be trying to claim some back pay as I’ve been doing this for nearly 2 years
Thanks Steve