Why I’m so gutted about the Mencap Ruling

I know this isn’t my usual post..

.. But if you’ve been on my Twitter recently you’ll notice all I’ve been tweeting about is the recent Mencap court case ruling, (passed on Friday the 13th how fitting)

If you’re not familiar with what’s been going on in social care recently, here’s a bit of background info for you.  Mencap have been to court three times to “Receive clarity on whether or not workers should be classed as “working” during a sleep in shift and whether or not they should receive the national minimum wage for this time, and also to appeal against paying up to six years back pay from when the law came into play” A sleep in shift is where a worker is required to sleep over at their place of work, in the event they are needed during the night. This is usually after a shift previously and a shift the next day. In my case I work from 1pm – 11pm, 11pm- 7am is a “sleep” and then work from 7am to 10am on a week day. On a weekend I start work at either 1pm or 3pm and finish at 3pm the following day. So I can go up to 26 hours at work at a time and for the sleep period I earn £28, which works out at £3.50 per hour.

The first two court rulings, ruled that as a worker is at work and cannot leave, sleeping or not, they are classed as working therefore should receive the NMW and that workers should receive back pay. Mencap appealed this for a third time and won, meaning that employers don’t have to pay the NMW for hours spent “asleep” they can pay a flat rate of whatever they like, and they don’t have to pay their employee’s back pay.

The judge ruled ” For the reasons which I have given I believe that sleepers-in, in the sense explained at para. 6 above, are to be characterised for the purpose of the Regulations as available for work, within the meaning of regulation 32, rather than actually working, within the meaning of regulation 30, and so fall within the terms of the sleep-in exception in regulation 32 (2); and we are not bound by authority to come to any different conclusion. The result is that the only time that counts for NWM purposes is time when the worker is required to be awake for the purposes of working. “

And Mencap’s statement is following the ruling

“The Court of Appeal has today handed down its judgement in two cases, one of which involves Royal Mencap. These are representative of many similar cases in the care sector. The Court’s decision has removed the uncertainty about how the law on the National Living Wage applies to sleep-ins. The prospect of having to make large unfunded back payments had threatened to bankrupt many providers, jeopardising the care of vulnerable people and the employment of their carers.  “Many hardworking care workers were given false expectations of an entitlement to back pay and they must be feeling very disappointed. We did not want to bring this case. We had to do so because of the mayhem throughout the sector that would have been caused by previous court decisions and Government enforcement action, including serious damage to Mencap’s work in supporting people with learning disabilities. “What is clear though, is that dedicated care workers deserve a better deal. They work hard and support some of the most vulnerable people in society, but many are among the lowest paid. We and many other providers have been paying for sleep-ins at a higher rate for over a year now, and we intend to continue despite the Court’s decision. We now call on Government to fulfil its responsibilities by legislating so that all carers are entitled to this, and their employers are funded accordingly. We also call on Government to ensure that the social care sector and, in particular, the specialised support that is required for people with a learning disability is properly funded and its workers are paid what they deserve in the future.” 

So a few point’s:

  • Mencap chose to fight their workers, not the government and they’ve waged a relentless guilt trip campaign against these workers. This law came into place years ago and it is an employers job to be up to date with changes in the law. If Mencap and other providers had started questioning councils funding and following the law when it came into place, there wouldn’t be such a huge back pay bill. Also I’m confused about where the £400 million figure has come from.
  • During a sleep in we are at work and cannot leave. If we left we would be disciplined and perhaps even lose our jobs, and if an emergency happened and we weren’t there or didn’t wake up, face criminal proceedings. That should be classed as work. A fireman doesn’t get paid only for the times they put out a fire so why is it different for care workers.
  • The judgement is made on the assumption that carers are asleep. The reality is very different, it’s not like going to sleep at home. When I go to sleep at home I don’t have the responsibility of other people so I can sleep soundly. At work I’m constantly listening out, every creak and slight noise makes it impossible to relax and get a decent nights sleep. I’m lucky if I manage two hours. Because I have that responsibility, I’m lone working and I’m constantly woken up by service users just going to the toilet, I can’t sleep properly. But I can’t book that time because its not an emergency. Perhaps the judge who passed this ruling should try a couple of sleep in’s, maybe then they can make a better judgement.
  • Another thing that bothers me is Mencap’s statement that they will continue to pay workers NMW for sleep ins. It’s infuriating that they are passing themselves off as heroes who will do right by their workers, but in reality they’ve just set the standards for companies like mine not to pay us the NMW, and they won’t because they know they will get away with it. Mencap have just legalised abuse of workers and poverty pay.
  • The judge also doesn’t take into account the health implications of “sleep in’s”. To do shifts before and after a sleep in is so exhausting both mentally and physically. At the end of my shift I often go home with a headache, backache and generally just feel unwell. Not to mention that handling medication etc whilst having had no sleep is potentially dangerous. And to be paid £28 for it is insulting.

This ruling is a huge slap in the face for care workers. We work so hard and do an amazing job, and to be told we’re not even worth the NMW is hurtful and disheartening. We work ourselves into the ground, do unreasonably long shifts with no breaks, sleep in after sleep in, back to back shifts because we care. It’s easy for CEO’s to sit on twitter proclaiming that they care etc, but where are they? Do they ever do the hands on work? I’ve couldn’t even tell you what my CEO looks like because I’ve never seen him, he never shows his face. And these are the people who get paid over £100,000 a year for what? and they begrudge their workers the NMW. It’s a disgrace.

It makes me so angry to see people on twitter, who have clearly never worked in care or done a sleep in, crowing about the judgement and how it’s a “common sense” ruling, painting care workers as greedy. I adore the people I support, but I don’t think it’s unreasonable to want some quality of life for myself too. After all, if I’m not taking care of myself properly, physically and mentally, then how can I be expected to provide good quality care? We all take our duty of care very seriously, so why is it so wrong to expect that we are paid fairly in return? It’s not like we’re asking for anything extravagant, just the NMW that everybody in every other industry is entitled to.

I ran a poll on my Twitter asking how many care workers were considering leaving their jobs after this ruling. 94% said they were, myself included. I love my job but I no longer want to work in an industry that treats it’s workers so poorly. It’s all about profit before people (both staff and service users) , and that isn’t what I signed up for when I started. I wanted to make people happy and make a difference to peoples lives, but I shouldn’t be expected to do that at the expense of my own.

We’re aren’t just glorified bum wipers who didn’t do well in school. We’re highly trained, compassionate caring individuals, with a lot of responsibility for very little in return.

So where do we go from here? The whole sector needs looking at very carefully, from NMW to working time regulations (which a lot of employers break). It needs to be investigated properly, I’ve tweeted Matt Hancock several times with no reply, I sincerely hope he will address this and not sweep it under the carpet.  I pray unison will appeal this, and I’m quite prepared to take strike action, as I’m guessing a lot of workers are. We have had enough of being treated like dirt, guilt tripped and walked over. We are exhausted, and if this treatment continues, the whole sector will be in crisis. Workers will leave and vulnerable people will be left with poor quality care and inconsistent staffing. The sector will collapse, and that will be down to Mencap. I hope they’re proud of themselves.

I know this has turned into a bit of a rant, but twitter didn’t have enough characters and this has been going over in my head since the ruling. As always, thoughts welcome.




4 thoughts on “Why I’m so gutted about the Mencap Ruling

  1. As a support worker who has done an average of 8 sleep ins a month for 16 years I can say that i wholeheartedly agree with you. On a sleep in you can’t have a drink, have visitors, can’t leave the premises, you have to follow your employer’s policies……you are at work, and as such should be paid the hourly rate stated in your contract not just the minimum wage. That we aren’t is due to a conspiracy of convenience between the government, employer’s and the judiciary. How we progress from here I don’t know, but I know greater unionisation must help. Better still would be a union specifically for careers.

    1. Thanks for your comment. I agree it’s pathetic the excuses care companies and the government have come up with. I’ve not heard much from the union yet but I’m keeping my fingers crossed xx

    2. I am and was a member of the GMB. The following is a reply that I sent to the GMB – Thank you for clarifying the position of the GMB in regard to my forthcoming appeal hearing but I wonder if you or anyone else that I contacted from the union even looked up my case (Shannon v Rampersad & Rampersad T/A Clifton House Residential Home UKEAT/0050/15/LA) before making an informed decision. In reply to your argument regarding the non legal involvement by the union: It was the union who would not involve itself with my case because I was a “new” member. I was told by Mrs Rae Goonetilleko that I should not have had any GMB support and that she only attended my grievance meeting as a favour to the Croydon Office. I was not offered legal advice from the GMB that is why I had no alternative but to seek advice from a “third party legal firm”.

      Where I mentioned “political decision” I was referring to the process of making decisions that apply to members of a group, in this case, the GMB. In effect, bypassing unionline, and then making a decision based on the merits of the appeal and the consequences for thousands of mainly female workers. The position that I now face is that if offered I may have to take an out of court settlement which would not be in the interest of thousands of workers.

      The purpose of a union should be to represent their members from day one of membership and not to act as in a similar fashion to an Insurance company with small print liability and exemption clauses.

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