There is a cynical campaign currently being waged by Mencap who are weaponising the disabled in their care, and manipulating ill-informed celebrities to endorse their 18 year-old policy of paying less than £3/hour to their staff. It’s called #stopsleepincrisis.
On the surface it appears that Mencap are setting themselves up to be the saviours of the Care Industry and champions of the disabled. Nothing could be further from the truth. Let’s delve beneath the seedy surface of their claims.
Mencap’s claim of a £400m bill is particularly disturbing, as indeed it is supposed to be, but is highly inaccurate and deceitful. This figure comes from a survey conducted by Cordis Bright in June of 2016, and was a maximum figure for the total of underpaid wages, and fines for non-compliance with the National Minimum Wage Act (1999). Fines for breaching the NMW are set at double the amount owed, to a maximum of £20,000 per employee. The lower estimate in the Cordis Bright Survey, although closer to the truth, was £160m, which may still appear to be an alarming figure.
In July 2017 a successful PR campaign which utilised the celebrity status of the same actors to pull on public heart-strings, culminated in the UK Government not only suspending HMRC enforcement action until October 2017 but also saw the Government waive all fines related to this issue. As a result, the total cost to the Care Industry as a whole can be estimated at the reduced cost of £80-100m.
To help understand this figure we need to examine Mencap’s liabilities in isolation from the rest of the industry: According to interviews with Mencap’s Chair in July 2017, they indicated that their liabilities were £35-40m. However this figure was also a high estimate and included the fines which have now been written-off. This brings Mencap’s liabilities to below £12m, which perhaps still sounds like an incredible figure?
-Infact in a conversation with a Senior Mencap Manager in May of 2016 he revealed to me that Mencap expected their liabilities to be around £8m. -Incidently this was almost 6 months before Mencap claim they had been made aware of the issue when they lost their first Employment Tribunal. Now tell me, why would you calculate liabilty on a problem that you didn’t know existed?
Within the last month a well-placed source working for Mencap in the south of England contacted me to tell me that Mencap’s actual liability runs to a mere £6m, or two weeks wages for the entire organisation.
However, to better understand how small this figure actually is we need to examine Mencap’s annual reports. The most recently published figures for 2015-16 reveal that Mencap’s income for that period was a remarkable £192m. They declared their cash-reserves as £23m. And they are currently crying poverty. Maybe you still think they shouldn’t pay?
The National Minimum Wage Act was introduced to guard against ‘slave’ wages. Several Employment Tribunals over the last 5 years have tackled the sleep-in issue. For the scholars amongst you the most important of these judgements was that of Whittlestone V BJP homecare in 2013, and of course Mencap’s own battle, backed by UNISON, in Tomlinson-Blake V Royal Mencap (2017), which they have lost twice now. Mencap are to attempt to reverse this decision once more by going to the Court of Appeal, in the Spring of 2018. Mencap claims that the Government is responsible for this ‘crisis’ is disingenuous at best, and downright lies at its worst, as it was not the Government whom ignored the judgements from numerous Employment Tribunals. If the scholars amongst you wish to look further back in time, you could perhaps read the ECJ judgement from Kier V Jaegar in 2003.
Mencap assert their reason for going to the Court of Appeal is to ‘seek clarity’, whatever that means, and that they ‘want to repay’ their workers. Nothing could be further from the truth. A Learning Disability Voices publication, Crisis in Care published in May 2017 belies the real reason: to have sleep-ins exempted from NMW Regulations, a return to £3/hour, to have their arrears cancelled and all related fines commuted.
Mencap’s mantra that ‘advice has changed’ if I’m to be generous is technically correct. However, what they are implying to an uninformed reader is that the Law has changed, which is factually incorrect. The ‘advice’ they refer to is from a DBEIS website; yes, you read that correctly, a website. Most people consult a lawyer when they want legal advice, but not Mencap. Most organisations of Mencap’s size also employ a sizable and professional Human Resources Department, whom are specifically trained in Employment Law, and regulated by a professional body such as the Chartered Institute of Personnel. Mencap have a HR team and very expensive Lawyers. I would challenge them to reveal how much they have paid in legal fees over the past 5 years but I’d be astounded if I got a reply. Even a high school student could tell Mencap that ignorance of the Law is not a valid defence in Britain. Contrary to Mencap assertions HMRC who are part of the British government and responsible for the enforcing the NMW regulations have been protecting the care industry for many years.
The realities of the situation are threefold:
1. Mencap has purposefully underpaid it’s staff for many years knowing that there was a tacit agreement between Care organisations and HMRC, one of non-enforcement of NMW regulations. This agreement has been revealed in several Freedom of Information Requests, which can easily be found with a quick internet search.
2. Employment Tribunals do not change the Law, they merely test the application of the Law based on the specific cases presented to them.
3. There has been no substantive change in NMW legislation since it’s inception in 1999.
Mencap are asking the public to look the other way so that they can get away with their years-old heist. They are framing the debate in terms of a false threat to the future of Care in the UK. The reality is that their #stopsleepincrisis is a disgraceful attempt to pressure the Government into dropping the backpay to some of the poorest workers in society. This would set a dangerous precedent and allow unscrupulous employers across the UK to exploit workers and re-introduce the very slavery that the NMW was introduced to defeat.
This should not be allowed to succeed. Mencap should settle their bill. Do not sign the #stopsleepincrisis petition.