I was delighted it was England’s turn to host the ARC UK AGM this year. As a UK wide organisation we of course rotate them across all four nations, but this is the first in England since I moved in to the Directors role here. It was great to see the room awash with a mix of people – all of whom are stakeholders, in fact not just ‘stakeholders’ that’s wrong; all of who are ARC supporters and friends. We had members, ARC staff, the Trustees, our MD and the nation Directors present.
We also had Anna Dabek with us, Senior Associate and Employment Law expert, from Anthony Collins Solicitors LLP. Unsurprisingly, the hot topic for discussion was the National Living Wage and sleep ins. We know this issue is not going away, the struggle for providers gets harder regardless of size of organisation, so it was great to have her expertise and knowledge in the room.
Anna spoke candidly about the situation, about the impact particularly in relation to sleep in payments for staff and the options available for providers. She outlined four options, some of which seem to be more attractive than others.
I outline below a very brief overview of these in my terms, as a layperson, below. (Here comes the disclaimer, I am no legal expert of course, these are my reflections rather than advice. If you would like specific advice then I can pass on Anna’s contact details).
1. Pay up! – The safest option against litigation is to pay per hour whether the staff member is working a waking night or is sleeping but needs to be on the premises. Simple. If only it were. There is still huge disparity across the country in terms of the approach of Local Authorities to payments for sleeps ins, making this option somewhat impossible for some and at best unsustainable for most.
2. Top-ups – I think most of you have heard and possibly adopted this approach – to average out individual earnings against hours worked to ensure you are paying at least the minimum wage legal requirement and then making a top-up payment if required to stay ‘legal’. Anna warned against counting enhancements when calculating, as they aren’t allowable (e.g. higher pay rates for weekends shouldn’t be included only the basic rate component of the hourly rate can be counted).
3. Unmeasured work agreements – by using a Daily Average Agreement some employers have drawn up a contract outlining the numbers of hours a staff member is likely to work within a set period. For example, a staff member may be on a shift that lasts 9 hours but realistically will only be ‘working’ for 3 hours of that (when the person(s) supported wake or for handovers) that means only the time awake is counted as a paid work hour. Unfortunately, this has NOT been tested for sleep in type scenarios although does work within live-in care.
4. Do nothing! No doubt the riskiest option of the lot, but an option we know some are taking.
We continue to work in collaboration with other organisations and alliances to raise the profile of this very real issue. None of us disagree with our workforce being paid what they deserve. The issue is the funding available to adhere to the law.
Interestingly, as discussions continued a story was shared that a certain Local Authority has increased funding to those in-house, Local Authority run support services to ensure they don’t get caught out not meeting the minimum wage requirements for sleep ins but they have not extended the same courtesy to commissioned providers of services! Really, what is that all about???!!! One rule for one and all that. Anna also spoke about the difference between HMRC rules when counting time worked and the legal perspective too. The mind boggles.
As you may be aware, ARC England holds regional events regularly (at the moment the topic is mock Employment Tribunals –London and Devon still to go!) and I feel we need to regroup and link back in to our members once again in terms of the impact of the National Living Wage. So we will be arranging another raft of meetings in the New Year, to bring you together, share stories and gather yet more evidence from you. Also we will engage one of our legal partners to support us. We know there is no quick win, no simple answer, or way to avoid this challenge. If good providers start to drop like flies out the market, it is likely the quality of support to vulnerable people will also diminish. Unacceptable. I’ll finish on a note of appreciation. A big thank you to Anthony Collins Solicitors for your support on Wednesday at the AGM, valuable conversations started from the valuable time you gave us.
ARC England Director