Should charities speak out on sleep-in arrears?

11th January 2018

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The issue currently giving sleepless nights to charities involved in the care sector is the thorny issue of payment of arrears to care workers for the time during their shift which were spent asleep. The numbers involved are substantial, and it is estimated this could cost the sector around £400m.

  • A newly-announced government scheme places more pressure on charities to address the issue of paying care workers for time spent asleep while on shift.

  • Many charities may struggle in treading the line between voicing their concerns regarding this issue, and running the risk of engaging in political activity.

On 1 November 2017 the Government announced its voluntary scheme to address this pay gap. Providers joining the scheme would be given 12 months to conduct a self-review with access to HMRC support, then up to three months to pay all arrears with a longstop date of 31 March 2019. Affected charities not signing up to the scheme have been warned that they ‘will be subject to HMRC’s normal enforcement approach’. Not quite a ‘voluntary’ arrangement, it seems.

The response from the sector has been strong. The chief executive of a disability charity has described it as ‘a concerted and planned campaign by government to undermine the sector’, while the chair of Mencap Derek Lewis (a charity which was a party to the initial employment tribunal case) has stated that smaller charities would be reluctant to join as this would be tantamount to ‘writing their own suicide note’ .

A fine balance

Quite likely then that many charities operating in the sector will have views to express on the introduction of the scheme. Many might also be unsure of what they are able to say, given that charities are generally uncomfortable participating in what might be thought to be political discourse, an attitude recognised by the Charity Commission itself in its guidance document CC9: ‘The commission’s experience is that some charities have been overly cautious, and inclined to self-censor their campaigning activity’. It is the position of the Charity Commission that so long as a charity is engaging in campaigning or political activity solely in order to further its charitable purposes, and there is a reasonable likelihood of it being effective, it may carry out campaigning and political activity.

A distinction is drawn in the guidance between ‘campaigning’ and ‘political activity’. Campaigning is understood as raising awareness or educating about issues; involving public support or attempting to influence public attitudes towards an issue; or campaigning to ensure existing laws are observed. Political activity meanwhile is defined as the attempt to secure or oppose a change in law or policy of central government, local authority or other public body. Effectively, political activity is the intention to make political change rather than raise awareness or change attitudes more generally.

A charity may have campaigning as a part of its charitable objectives, but political activity must only be a means of supporting or contributing to the achievement of its charitable purposes. Political activity should never become a dominant, sole or continuing activity of a charity, though it may do this for a short time.

In carrying out either form of activity, the charity should consider whether the objective of the activity is realistic and reasonable, and whether it is a good use of charity resources. In the case of political activity, it should also consider whether any alternatives to political activity could achieve the same objective, and whether any claims it makes are well founded and accurate.

This guidance should not be confused with the general rule that charities must not become involved in party politics. Inappropriate involvement would be donations to political parties, support for particular parties or candidates, or publication of the views of one party over any others. So long as an issue relates to its charitable objectives, a charity may support a policy, or publish a politician’s opinion on said issue, but it must stress its independence by encouraging other views or making unequivocal statements that that the charity does not support any one particular party.

Due considerations

In relation to the sleep-in issue, therefore, trustees must ask themselves a number of questions before speaking out.

  • Does the issue relate to their charity’s objectives?

  • Would the charity’s involvement be classed as campaigning or political activity (eg a survey of care providers’ opinions on the sleep-in repayment scheme might be campaigning, but a statement disagreeing with the Government’s scheme might be political activity)?

  • Are their objectives realistic and reasonable? Is it a good use of charity resources?

  • What are the risks of the activity against the possible benefit? Is the activity political party neutral?

Provided trustees can satisfy themselves in relation to the above, they should not be afraid to make their voice heard. However, if the activity is to take place at or near to an election, when the more stringent requirements of the Lobbying Act 2014 and Political Parties, Elections and Referendums Act 2000 (known as PPER) apply, then charities may be rather more hamstrung. Until then, it is important for the sector that they do speak out on the issues affecting them and are not frightened off by misinformation around this important activity.

If you would like more information regarding this topic, please do not hesitate to contact a member of our Charity & Not-For-Profit Team.

This article was originally written for published in NLJ by team member Ellis Pugh with Giselle Davies.

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