Yesterday (26 July 2017) the Government announced some ‘exceptional measures’ to start to tackle the sleep in crisis. This is a very welcome move, as a critical deadline was fast approaching that would have had huge ramifications for the whole sector. These steps will at least keep the ‘wolf from the door’ for a while and halt proceedings, whilst a potential solution is explored. A positive move indeed.

No doubt you will have heard the steps outlined yesterday, ultimately the Government:

  • Has re-affirmed its expectation that all employers pay workers according to the law, including the National Minimum Wage, which is explained in guidance – “Calculating the National Minimum Wage”
  • Will waive the financial penalties (not the underpayments themselves) faced by all employers found to have underpaid their workers for “sleep in” shifts, undertaken before 26 July 2017
  • Has adopted a policy of suspending HMRC enforcement activity concerning payment of “sleep in” shifts by social care providers, which will apply until 2 October 2017
  • Will work with social care sector representatives, during the suspension period, to see how it may be possible to minimise any impact on provision of social care as a result.

Here it is in black and white – all employers are expected to pay workers according to the law, which is explained in the guidance. The issue with the guidance is that we don’t agree it is/was clear! However, the Government’s assumption is that sleeping time is working time and so the message is clear – to ensure staff are paid minimum wage for all time at work whether asleep or not. I know some members are already doing this and a number of providers are using top-up arrangements too as an option to be compliant. There are other options to consider – see the Anthony Collins briefing in main stories for more.

So the big question is now, how will providers be able to fund this on an on-going basis, if we assume that going forward forever more that sleep in time is working time at the full minimum hourly rate? We know that some Local Authorities have increased the fees they are paying, but some haven’t have increased enough and the gaps will compound the challenges providers are already facing. So plenty of work still to be done here!

In terms of waiving penalties up to 26 July 2017 (again another welcome move)– this has been granted, as there is acknowledgement that HMRC guidance was essentially ‘woolly’ at best. So, if the Government accept that in terms of waiving the associated fees of non-compliance, surely they need to accept that in terms of how providers were practicing, in good faith, too.

The debate on whether time asleep should be paid at minimum wage or not, or whether there should be a separate special social care sleep in rate arrangement has been going on a while now. Some opinions are that those hours absolutely should count at the full rate, but others say that actually, with resources so scarce, bang for the social care ‘buck’ needs to be maximised during waking hours… Ultimately, whatever side of the fence you are on, we are at a juncture now where we have an opportunity to clarify and remedy this long-standing issue. The Government have acted and taken a step forward, there are a few more steps to go but, at last this issue is getting the attention required and we will do whatever we can to positively support the Government to understand the position of our members.

Pretty soon I hope employers and employees will know where they stand, allowing both of them to get on with focusing on the most important part of all this – the people they support.

Lisa Lenton
ARC England Director