The Employment Rights Bill (the Bill) provides for the establishment of a new Adult Social Care Negotiating Body (ASCNB). This is a radical solution to try and resolve the issue of staffing in adult social care.
This is likely to be the first step in the Government's plans to establish a National Care Service. The adult social care sector has a turnover of over 30% and struggles to recruit and retain good staff. This has an impact not just on the social care sector, but also the NHS. It is recognised that in recent years adult social care workers have been poorly paid, and the sector is reliant on lots of recruitment from overseas. Evidence shows that, along with other factors, low pay and poor terms and conditions affect domestic recruitment and retention.
The provisions in the Bill are, therefore, intended to empower workers, employers and other sector representatives to negotiate pay and terms and conditions. What they propose is a new negotiating body which will have the ability to set pay and terms and conditions for adult social care workers under a recognition agreement for the entire sector.
This is something new!
It is very unusual for a whole sector to be given standard pay and terms and conditions and there is no pre-existing law on sectoral agreements in the adult social care sector.
Who will be covered?
A "social care worker" is defined in the Bill as "a person who is employed wholly or mainly in, or in connection with, the provision of adult social care in England". The definition is a broad one; it appears to encompass agency workers where they are supplied to do work and are paid by the agent (the supplier) or the principal (the end user). Under the current definition, agency workers will be deemed to be a worker under a contract with whoever is responsible for paying them for the purposes of the Bill. Will it however cover employees who provide supporting services such as cleaning, catering or even HR?
What is "adult social care"?
"Adult social care" is defined in the Bill as including "any form of personal care or other practical assistance provided for individuals aged 18 or over who, by reason of age, illness, disability, pregnancy, childbirth, dependence on alcohol or drugs, or any other similar circumstances are in need of such care or other assistance". We are sure that there will be discussions around what "practical assistance" means.
How will the ASCNB be formed?
The Bill provides that regulations will establish the ASCNB, who will sit on it, and how it will work.
The regulations will provide that those appointed as members must include officials of one or more trade unions that represent the interests of social care workers as well as "people representing the interests of social care worker employers". There are over 18000 care providers in this sector, so the question of who can represent their interests is a good one. We will have to wait and see who will be invited to be a member and whether they are truly representative of the sector.
What falls within the ASCNB's remit?
The matters falling with the ASCNB's remit are the remuneration of social care workers, their terms and conditions of employment and any other matters relating to their employment. This is all fairly broad brush; the details will be filled in by regulations which the Bill gives the Secretary of State the power to make. The regulations will specify a number of things, including factors which the ASCNB may take into account when considering a matter; conditions (including funding) that have to be met in relation to any agreements reached; and information which the members of the ASCNB will have to provide for the purposes of enabling the body to reach agreement about a matter.
Once the ASCNB has reached agreement it will have to submit it to the Secretary of State for ratification. There may be a bit of to-ing and fro-ing beforehand, as the Bill gives the Secretary of State the power to make regulations to enable it to refer a matter back to the ASCNB before agreement is reached. In situations where no agreement is reached the Bill provides that, among other things, regulations can make provision for resolving disagreements, or requiring the ASCNB to act in accordance with a decision of the Secretary of State or another person specified in regulations.
Once an agreement has been reached on remuneration or terms and conditions, the social care workers will be paid in accordance with/work under the terms and conditions reached in the agreement. The Bill specifically provides that a term of a social care worker's contract will have no effect to the extent that any provision of it is prohibited by, or is inconsistent with, the agreement.
Consultation and retrospective effect
We anticipate there will be consultation on the regulations bringing this law into effect. We will take part in that consultation and will seek your views.
Although the general expectation is that the measures contained in the Bill will come into effect around April 2026 there is provision within the Bill for certain measures to have retrospective effect. This is very unusual as most laws are only effective from the day that they are made, not backwards.
The first of these measures is where the ASCNB submits an agreement to the Secretary of State and the Secretary of State ratifies the agreement. The second is where the ASCNB notifies the Secretary of State that it has been unable to reach an agreement on a matter referred to it and the Secretary of State can then provide that regulations will determine the terms and conditions of employment of social care workers. This means that these workers will be paid in accordance with the regulations, and any regulations relating to any other terms and conditions will have effect as if they are a term of the worker's contract. Any terms that are prohibited by, or inconsistent, with the regulations will have no effect.
Will there be any guidance?
It will come as a relief to know that the Bill also provides a power for the Secretary of State to issue guidance or codes of practice. These will relate to any agreements submitted by the ASCNB and any regulations made by the Secretary of State in relation to pay and terms and conditions of social care workers.
What about enforcement?
We anticipate that these terms and conditions will be enforced in the same way as the minimum wage.
Food for thought
Collective agreements are rare in the care sector as only a few care bodies are unionised, so imposing collectively agreed terms on a non-unionised workforce will not be without its challenges!
Will social care staff be able to argue that the proposed mechanism of agreeing terms and conditions of employment is in breach of their rights to freedom of association and assembly under Article 12 of the Human Rights Act 1998? For example, Unison and Unite might have a seat on the ASCNB, but some social care staff might be members of, or want to join, another union which is not involved. They may object to having their terms and conditions determined by a union they are not a member of. The same could go for care providers who won't be keen on having the terms and conditions of their staff members determined by unions who don't represent their staff.
Another interesting area is what happens if there are retrospective elements? Most contracts between commissioners and care providers contain a change of law provision which provide that the fees of the provider will go up if there's a relevant change of law. What happens with collectively negotiated terms? This won't be a change of law and so any resultant costs may not be recoverable.
These are just a few preliminary thoughts on the matter; we will have to wait to see what shape the sectoral agreement will take. In the meantime, we will have the opportunity to feed into government consultations as and when they go live and will certainly be canvassing your views when they do!
