Foster carers – workers, employees or self-employed contractors?
The Law Of…Foster Carers And Their Working Status
Worker - or employee status - is frequently a hot topic in the news, along side the ever trending 'gig economy'. Foster carers are perceived as self-employed contractors, despite the demand for the role, and as such are not entitled to the same rights as those with legitimate worker status.
Deana Bates, Employment Law Solicitor, takes a look at why Foster carers struggle to get their desired status.
Why Is Worker/Employee Status So Important?
Many individuals providing services ranging from food delivery, to private hire transport or care have attempted to argue that they ought to be deemed an employee. These arguments around status arise as individuals are seeking to secure rights including but not limited to; paid annual leave, the right to be paid the national minimum wage and the right not to be unfairly dismissed.
Foster carers specifically are perceived as self-employed contractors because they provide a service and therefore are not entitled to the rights listed above. Many foster carers are now seeking to change this status.
Have People Tried To Challenge Worker Status Before?
There have been a number of cases brought before the employment tribunal which challenge employment status. These cases are likely to continue to increase as awareness on the issue rises.
In the Employment Appeal Tribunal case of Bullock v Norfolk County Council case in 2010, Ms Bullock provided foster child care services for Norfolk County Council.
Ms Bullock was invited to a meeting with the Council to discuss the possibility of terminating her approval to operate as a foster carer. Usually, an employee or a worker will have the right to be accompanied to meetings of this nature, by a trade union representative. Ms Bullock made a request to bring a trade union representative, but she was refused this right.
Ms Bullock claimed before a tribunal that the Council had denied her the right to be accompanied, despite this right being set out in section 10 of the Employment Relations Act 1999. The tribunal rejected her claim and stated there was no contractual relationship between the Council and Ms Bullock, therefore she did not satisfy the definition of a worker and was not entitled to exercise the right to be accompanied.
Ms Bullock attempted to appeal the case, but the appeal was dismissed.
Have There Been Any Successful Cases Involving Foster Carers?
The most recent case relating to foster carers on this issue was heard in a Scottish employment tribunal on the 3rd of August 2017. Mr & Mrs Johnstone, foster carers providing care on behalf of Glasgow City Council, were granted the right to be recognised as local authority workers.
When assessing the question of whether the Johnstones were employees of the Council, the tribunal looked at the contractual relationship. It was decided that the mutuality of obligation, coupled with the level of control asserted over the Johnstones by the Council, in relation to their obligation to carry out work offered to them by the Council, was perceived to be sufficient enough to warrant them employees of the Council.
The decision to grant the Johnstones employee status is a clear change in the judicial mindset. This could mean that similar types of claims will succeed on this point in the future. Now that the Johnstones have overcome the hurdle of employee status, their case will proceed to a final hearing.
What Does This Mean For Foster Carer Employee Status?
Whilst the Judge in the Johnstone case made it clear that this decision should not be taken as the new standard for all foster carers looking to challenge their worker status, the facts which influenced the decision in this case will undoubtedly be used in similar cases against other local authorities.
Despite it being made clear that the decision in this case could be appealed and should not be perceived as a decisive one, it is highly likely to be perceived as a great victory for employment rights amongst foster care services.
This case is yet another example of a ground breaking claim supported by a union (in this case the Independent Workers Union of Great Britain) and shows how a union can benefit all workers in a similar position, as claims such as this can be hard for any one worker to bring as an individual.
Deana Bates Comments:
"The issue of employee/worker status will continue to be somewhat of a legal quagmire; however this case is likely to induce others in similar circumstances to challenge their situation and could lead to some interesting judgements, which may well result in a turning point for employment rights within the foster care industry."
“Foster care is a vital part of the care services, especially in regards to teens, who require a high level of stability offered by foster carers. Without clarity with regards to status and worker's rights going forward, it may be difficult to see an improvement in standards of foster care and to encourage more individuals to become foster carers.”
“We encourage all parties to be clear when entering into agreements regarding the provision of services, as to what rights they are expecting to have or give and for both parties to seek legal advice where they are unclear on their rights or duties.”
The question of employee/worker status will continue to be a difficult one to answer for some time. If you have any queries please contact our Employment Law specialists on our Freephone number or get in touch through our digital contact form.