Employment Rights Bill: government to create body to set adult social care pay and conditions

The government will create a body to set pay and conditions for adult social care staff in England should its Employment Rights Bill become law.

The bill, published yesterday, would allow the government to make regulations creating an Adult Social Care Negotiating Body, to make agreements about the pay, terms and conditions of adult social care workers in England.

The body would have to have representation from unions representing social care staff and sector employers, though may have other members, while the government would determine how it would operate and reach decisions.

Under the bill, the government would also be able to ask the negotiating body to reconsider proposed agreements.

Enforcing social care pay agreements

Where ministers were in agreement with the body’s proposals, the bill provides for them to make further regulations ratifying them, meaning the agreements would be binding on adult social care employers in England and would need to be reflected in social care workers’ contracts.

This would be enforceable in the same way as minimum wage legislation is, with such enforcement being the function of a new Fair Work Agency.

Tackling ‘exploitative’ zero-hours contracts

Alongside the negotiating body, the bill also provides for an end to “exploitative” zero-hours contracts by introducing rights for workers to:

• a reasonable notice of shifts and payment for shift cancellation and curtailment at short notice, for those on zero- and low-hours contracts, and
• a guaranteed hours contract that reflects the hours they regularly work over a reference period.

According to Skills for Care’s latest report on the adult social care workforce, also published yesterday, 21% of all adult social care posts (about 340,000 roles), 29% of care worker posts and 43% of home care worker posts were employed on zero-hours contracts in 2023-24.

The bill would also abolish the lower earnings limit – currently £123 per week – for eligibility for statutory sick pay (SSP), while SSP would also be payable from the first day of a person’s absence, not the fourth, as is currently the case.

Question marks over funding

The government has not yet set out how the measures affecting social care would be resourced, in the context of most services being funded by the state, prompting concerns from provider leaders.

Homecare Association chief executive Jane Townson said it  fully supported “measures to enhance workers’ rights and improve job security”.

However, she said that, by the association’s calculations, current council and NHS fees were significantly below that required by providers to cover costs and make a 5% profit or surplus.

Providers ‘may be pushed to the brink’

“Introducing day-one rights for sick pay, for example, could add at least 10p per hour to the cost of delivering homecare. While beneficial for workers, this will add financial burdens to care providers who already operate on tight margins,” she added.

“If local authorities and the NHS don’t provide more funding, these new regulations could push many providers to the brink.”

She said the association backed establishing a national contract, requiring public bodies to pay a minimum price for care services.

“We call on the government to work closely with the care sector to find solutions that balance the laudable aims of the Employment Rights Bill with the need to maintain a viable and robust care system,” Townson said. “We must address these challenges to protect and support both care workers and those they help.”

‘A major step towards giving social care due priority’

Think-tank the Nuffield Trust said the bill was a “major step towards giving adult social care the visibility and priority it has been lacking for far too long”.

“The provisions on pay and conditions massively strengthen the secretary of state’s powers and responsibilities for social care staffing, making them clearly accountable in a way that has previously been lacking,” said its deputy director of policy, Natasha Curry.

“However, the new rights and any changes to pay will need to be implemented carefully because social care is in such a precarious state after decades of neglect,” she added. “Many employers are so financially squeezed that suddenly requiring guaranteed hours and additional rights without support could push some into bankruptcy.”

The legislation was strongly welcomed by UNISON, whose general secretary, Christina McAnea, said: “The means to create a fair pay agreement to increase wages for care workers in England is game-changing. It’s an historic first step towards transforming a sector that’s been neglected and ignored for far too long.”

Other employment reforms

The bill would also remove the two-year qualifying period for protection from unfair dismissal, meaning that employers would only be able to dismiss staff for a fair reason that falls under any of five categories (conduct, capability, redundancy, statutory restriction, or some other substantial reason) from the start of their employment. However, employers would have more flexibility to dismiss during an initial probationary period set by regulations, which is likely to be nine months, though will be subject to consultation.

Other measures include:

• reducing employers’ scope to reject flexible working requests only to cases where accepting the request were not reasonably feasible;
• removing the 26-week qualifying period for people to take paternity or parental leave, enabling them to do from day one of their employment;
• requiring employers to protect their staff from harassment from third parties;
• enabling ministers to require employers delivering outsourced public services to equalise terms and conditions between staff transferred from the public sector and other employees;
• making it easier for trades unions to gain recognition from employers to collectively bargain on behalf of staff.

Announcing the bill in a parliamentary statement, business and trade secretary Jonathan Reynolds said it represented “the biggest upgrade in employment rights for a generation” and would “raise living standards across the country and provide better support for those businesses who are engaged in good practices”.