Victory on government funding of sick pay for care workers: Some background and implications

The government's promise to fund sick pay for care workers is a step towards recognising the intrinsic link between care quality and workers' rights.

Commentary icon20 May 2020|Comment

Lydia Hayes
Lydia Hayes

Professor of Law, Kent Law School

On 18 May in the House of Commons, the Secretary of State for Health and Social Care directed that additional funding for local authorities would ‘ensure’ care workers receive sick pay in the context of Coronavirus.

This follows the publication of the Coronavirus (Covid-19) Care Home Support Package by the Department of Health and Social Care on 15 May, Section 2.3 of which directs care providers to pay for additional staff and/or maintain the normal wages of staff who, in order to reduce the spread of infection need to reduce the number of establishments in which they work, reduce the number of hours they work, or self-isolate.

Our research

Our research at Kent Law School about the regulation of social care had previously analysed data from a survey of care workers by UNISON North West and found eight in 10 respondents did not believe they would be paid wages if they had to self-isolate or shield because of Coronavirus. Fear of poverty meant some care workers were not self-isolating. We reported our concerns that poor decision-making and lack of understanding of care workers’ needs were contributing to a failure to uphold legal obligations and to respect human rights.

Up until the announcement in the House of Commons, official government advice to social care employers had been that care workers who needed to self-isolate or shield because of Coronavirus might be eligible for Statutory Sick Pay (£95.85 per week), or if not eligible they could claim Universal Credit (for which there is a five-week wait, even if the application is successful). Both options were woefully inadequate and had exacerbated care workers’ anxiety about the potential impact of the virus on their health, and on their ability to survive financially. The government had not acknowledged that the failure to provide occupational sick pay in social care was a major risk to public health, as care workers could not afford to stop working.

Our research demonstrated that this was fuelling virus transmission between care homes and the community, as well as undermining any hope that a testing programme could be effective in reducing Coronavirus outbreaks in care settings. We recommended that the government step in with a guarantee of sick pay to care workers and communicated our recommendations to the Department of Health and Social Care via the press and on social media. We gained formal backing for our recommendations from both UNISON and GMB trade unions at a national level and, with their endorsement, made a submission to the Women and Equalities Commission Inquiry into Coronavirus, which is currently in progress. In early May, our report was filed in the House of Commons Library.

Fear of poverty meant some care workers were not self-isolating ... poor decision-making and lack of understanding of care workers’ needs were contributing to a failure to uphold legal obligations and to respect human rights.

Our impact

Meanwhile, our research partner, UNISON North West, was busy using the report to support negotiations at local level with Liverpool, Wirral and Salford Councils and elsewhere across the North West Region. UNISON was able to win commitments to occupational sick pay, as well as secure agreements in which care providers (i.e. employers) would receive additional funds from those local authorities for the purpose of paying occupational sick pay to their workers.

The union’s success built on five years of dedicated campaigning work that had recruited thousands of care workers into the union and demonstrated the potential for unionisation to improve their terms and conditions of work. It was against this backdrop that Labour MP for Stockport, Navendu Mishra, tabled a question in the House of Commons debate on Health and Social Care in which he asked for more funding and direction to ensure care workers receive full pay when absent due to Covid-19. The Secretary of State replied:

“It is an incredibly important question and one of the purposes of the £600 million extra that we are putting into the social care system, that will go direct to the front line. Local authorities are not allowed to use it for other purposes, one of the purposes of that is to ensure that when social care staff need to be away from work for infection control purposes that they are not penalised for doing so.”

This was a significant development because it signalled the acknowledgment of government that occupational sick pay should be paid, as well as its recognition of responsibility to fund this in the context of infection control. However, the route through which money from government might actually materialise as occupational sick pay for care workers is legally complex because of the legal effects of privatisation and fragmentation of the care industry. In isolation, this new direction from the Secretary of State and his promise of new money is not enough to make change happen.

The problem of privatisation

Even with the best will in the world, government ministers do not have direct levers of command and control over the terms and conditions of employment of care workers, because the vast majority of those workers are employed by private businesses. The legal mechanisms available are predominantly those of contract between local authorities and the care providers with whom they engage to meet the care and support needs of eligible citizens.

Local authorities have statutory duties under Section 5 of the Care Act 2014 to promote the efficient and effective operation of a market in services for meeting care and support needs. In so doing, the law requires local authorities to have regard for the importance of ‘fostering a workforce whose members are able to ensure the delivery of high-quality services (because, for example, they have relevant skills and appropriate working conditions)’.

According to statutory guidance, this gives local authorities a legal basis on which to shape the contracts they enter into with private providers in matters of ‘remuneration […] so as to retain an effective workforce’. However, the use of these contractual measures can only extend to care work which is funded via local authorities, i.e. for citizens who are eligible for state-funded support because of their financial circumstances. It does not apply to services that are funded by individuals out of their own money or by families who foot the bill directly.

A new legal avenue?

There is, however, another legal route. Providers of care and support must, by law, adhere to regulatory standards in order to be able to lawfully operate as ‘registered providers’. These regulations are supposed to ensure that care and support services are safe, and they apply regardless of whether those services are paid for through public or private funds. My research team, with a grant from Wellcome Trust, is investigating how those regulations might provide a legal basis for improvement to the quality of care workers’ employment. This announcement on sick pay from the Secretary of State provides an illuminating example of the issues we are examining.

For example, registered care providers are under legal obligations to ensure that they provide safe care and that risks to the safety of people for whom services are provided are identified and mitigated. Regulation 12 states that ‘care and treatment must be provided in a safe way’ and requires providers to ‘demonstrate that they have done everything reasonably practicable to provide safe care and treatment’. Regulation 17 requires service providers to ‘assess, monitor and mitigate the risks relating to the health, safety and welfare of service users and others who may be at risks, which arise from the carrying on of the regulated activity’.

The term ‘others’ in this provision extends to staff, as is explicitly noted in the Guidance issued by the sector regulator, the Care Quality Commission. The Guidance also expects service users to ‘seek and act on feedback’ from various groups, including staff, in order to ‘continually evaluate the service and drive improvements’. The Regulations suggest that terms and conditions of care workers are a relevant consideration in matters of care safety.

Even with the best will in the world, government ministers do not have direct levers of command and control over the terms and conditions of employment of care workers, because the vast majority of those workers are employed by private businesses.

Four key arguments

There are four key facts which I believe provide a basis upon which to argue that the above regulatory requirements for safe services and mitigation of risk require occupational sick pay to be made available to care workers.

Firstly, we know that twice as many care workers have died from Covid-19 as compared to NHS workers and in comparison to the general population. As UNISON Assistant General Secretary, Christina Mcanea, has noted, this shows the extent to which ‘care workers are literally putting their lives on the line just by going to work’.

Second, as our research has evidenced, we also know that lack of occupational sick pay means that care workers are not able to self-isolate and are not able to shield themselves without being driven further into poverty.

Third, we know that infection and transmission rates in care settings, particularly care homes, are far higher than rates of transmission and infection in the wider community.

Fourth is our awareness that users of care and support services are at the highest risk of serious complications and of death from Covid-19 and other health impacts of Coronavirus, such as reduced opportunity to access medical attention.

These facts establish that the provision of occupational sick pay to enable care workers to self-isolate would mitigate the risk of Coronavirus infection to the health, safety and well-being of service users and others.

The facts also evidence that it is virtually impossible to ensure care is provided in a safe way if the employment of care workers does not provide them with effective means by which to protect their own health and the health of others. It has long been evident that the interests of people in need of care and support services are best served when the interests of the people who provide that care and support are met.

However, privatisation and marketisation of care has fragmented provision and subordinated mutuality of interest to the political imperative of competition and to aggressive cost cutting in the context of austerity.

The Regulations suggest that terms and conditions of care workers are a relevant consideration in matters of care safety.

Care quality cannot be separated from employment quality

The lack of sick pay is just one example of how the impoverishment of care workers in the name of cost efficiency puts people in danger of receiving poor-quality care and, at a time of Coronavirus, is directly putting lives at risk. As our research argues, this is in part because the regulatory requirements by which care providers are deemed to provide safe care have been interpreted, structured and enforced in a manner that has been divorced from concerns about poor-quality employment for care workers. We can see this starkly in respect of devolution arrangements. The governments of Wales and Scotland have legal responsibility for the quality of care but are prevented from legislating, regulating or distinctively intervening in the care market with the primary purpose of eliminating care workers’ poor terms and conditions. This is because matters of employment and equality are legally reserved to Westminster.

We can also see the separation of care quality from job quality concerns in the approach of the regulatory agencies in England, Scotland and Wales. Each one has attempted to drive up standards of care and support while failing to tackle systemic underpayment of minimum wage, failing to prevent the scourge of insecure and zero-hours contracts, failing to establish a proper basis for the setting of wages of care workers in recognition of their skills and responsibility and failing to remedy chronic recruitment problems. They would argue, I suspect, that these matters are not within their purview.

My research team, however, would argue that because the terms and conditions of care workers have a direct impact on the quality and safety of care, care standards regulation should be understood as a form of labour law. We think it would be desirable, and indeed possible, to pursue compliance with regulatory standards in ways that improve terms and conditions of work. The example of the announcement by the Secretary of State on sick pay provides a very welcome opportunity to advance an agenda of safe and effective care services with a strategy that advances care workers’ rights and interests too.

Lydia Hayes

Lydia Hayes

Lydia Hayes is a Professor of Law at Kent Law School where she is Principal Investigator of the Social Care... Read more »