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  • International Workplace
  • 24 October 2017
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Foster carers: the latest employment status argument

The recent lodging of an Employment Tribunal claim against Hampshire County Council on behalf of a foster carer has re-opened a long-running debate surrounding the status of foster parents.

Background

Sarah Anderson provides foster care for the local authority but she is not classified as an employee or a ‘worker’, which would entitle her to various rights such as holiday pay and protection from discrimination. In what may be a ground-breaking case, she will argue to have foster carers re-classified so they will be entitled to the same benefits.

The Independent Workers’ Union of Great Britain (IWGB) has also submitted an employment status and unpaid holiday claim on behalf of Ms Anderson.

Ms Anderson and her husband have provided a foster home for ten children over a four-year period for the council. They do not receive holidays, but are allowed two weeks’ respite from their care duties per year. Ms Anderson does receive pay from the council but her status means that when she falls ill, there is no right to sickness pay.

Ms Anderson, who chairs the foster care workers’ branch of the IWGB, hopes that her claim will change the situation for other foster carers like her. She has stated that:

“As foster care workers we are exploited, have no rights whatsoever and are treated as a disposable workforce, when society needs carers more than ever.”

She aims to establish her status as a ‘worker’.

Foster carers tend to work for local authorities, charities or private companies that act on behalf of councils. Carers receive a weekly allowance to cover the costs of the children they care for and some like Ms Anderson also receive a fee as compensation for their work.  

Why is worker status important?

The employment status of an individual is significant because ‘workers’ are not entitled to the full set of employee rights. They receive some rights, such as paid holidays, the National Minimum Wage, pension contributions under auto-enrolment, and protection from discrimination.

In order to be classified as a ’worker’ an individual must meet the relevant legal definition as defined under section 230(3) of the Employment Rights Act 1996:

‘An individual who has entered into or works under (or, where the employment has ceased, worked under):

  • a contract of employment, or
  • any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.’

The issues

Undoubtedly, foster parents have a high level of responsibility and the nature of their work can often be stressful and demanding. They are paid for their service, but fall short of receiving the legal protections afforded to employees and workers.

Local authorities and private fostering agencies do not recognise these carers as having any employment rights.

Hampshire County Council has indicated that it will defend Ms Anderson’s claim and reject her position that she has any status as an employee or worker.

The Employment Tribunal Appeal case of Bullock v. Norfolk CC (2011) UKEAT and the Court of Appeal decision in NA v. Nottinghamshire County Council (2015) EWCA Civ 1139 previously decided that the agreements carers have with local authorities or fostering agencies do not amount to legal contracts. Such a contract is required under the legislation for someone to be classed as either a worker or employee.

In Ms Anderson’s case, the IWGB is arguing that her circumstances are different and, under European law, a legal contract is not actually required to form an employment relationship.

The situation is far from clear and is further complicated by differing decisions north and south of the UK border. In June this year, the Glasgow Employment Tribunal held that some specialised fostering agreements could be shown to be different from those the Court of Appeal was considering when it concluded that the two claimants were, in fact, ‘employees’. The decision placed particular emphasis on the level of control the local authority had over foster carers as well as considering the relationship of mutual obligations between the carers and the council.

Summary

As with any Tribunal claim, the outcome of Ms Anderson’s case will depend on the specific details of her situation, her agreement and her relationship with the local authority.

This case is particularly significant in the wider context of the recent Taylor Review and Tribunal cases involving employment status in the modern-day ‘gig economy’.

Local authorities and companies who engage foster carers will be following this case in anxious anticipation. It is estimated that there are approximately 64,000 foster children being cared for in 55,000 homes across the UK. The outcome could have wide-ranging implications for councils and fostering organisations because it could lead to an influx of litigation from foster parents following the recent abolishment of Tribunal fees.

 

Gavin Macgregor is an Employment Lawyer at Loch Employment Law, part of the Loch Associates Group.  To contact Gavin, call 0131 322 3501 or email info@lochlaw.co.uk