Tribunal ruling paves way for full employment rights for foster carers

Campaigners fighting for foster carers to get the same rights as other council workers, including holiday and sick pay, have claimed a landmark victory.

In a case brought by three foster carers, a tribunal judge ruled they have the right to have discrimination and whistleblowing claims heard at an employment tribunal.

Until now, foster carers have been treated as independent contractors with no such rights. They can be hired and fired without recourse, something foster carers claim is a denial of their human rights.

The National Union of Professional Foster Carers (NUPFC), created in 2021 to push for law change, welcomed the decision at East London Employment Tribunal.

It now plans to take the fight for full employment rights to the Supreme Court.

General secretary Robin Findlay said: “We are very pleased with the judgment the tribunal have given. It has opened the door to whistleblowers and discrimination claims and we are pleased the judge has written the judgment in such a way that all the evidence is there for it to proceed to the Supreme Court to overturn a historic case called ‘W v Essex’ which currently blocks foster carers getting full workers’ status.”

The 1998 W v Essex County Council case ruled that while foster carers have some features of being employed, such as payment of allowances and expenses, they are not in an employment contract.

Tribunal judge John Crosfill said he was bound by this case but highlighted comments by senior Court of Appeal judge David Bean who said the reasoning behind the case was “puzzling” and should be revisited by the Supreme Court.

Findlay said the tribunal win means other discrimination claims against local authorities could now be heard.

“We have about 30 tribunal cases ready to go. Now these cases can proceed and we are looking at all our other members.”

The tribunal test case involved three London foster carers who claimed they had suffered discrimination by their local authority.

The claimants were Pauline Oni against the borough of Waltham Forest; Paulette Dawkins against Bromley; and Angela Reid against Haringey. 

The judge’s ruling means they may now pursue discrimination claims against their local authorities.

Oni said: “Before you couldn’t do anything if you felt you were being treated unfairly, you would just have to toe the line. If you complained they could make life difficult for you and the situation becomes untenable.

“I think this ruling will improve recruitment and retention rates among foster carers, knowing they have that added protection.”

Jacqueline McGuigan, of TMP Solicitors, who represented the three, said: “This judgment is a great day for foster carers in the UK. 

“For almost 30 years, they did not have the right to bring any claims in an employment tribunal. As a result of this judgment, they can pursue discrimination and whistleblowing claims, which are the most serious types of claims you can bring in an employment tribunal.

“Overturning W v Essex in the Supreme Court will not be easy, but this judgment has paved the way for the possibility of that happening. The employment tribunal said it would have found foster carers to be workers if there was no W v Essex. This is a huge incentive to try to topple this outdated Court of Appeal case.” 

If successful, it could open the door to back payment to foster carers, said Findlay, which could run into millions of pounds.

Background

Under UK employment law, there are three categories of people in employment: employees, who have full employment rights; ‘workers’ (also referred to as limb (b) status) who have some rights such as paid holiday; and independent contractors with no employment rights.

As independent workers, foster carers get paid a weekly allowance rather than a salary and enjoy tax benefits. They are not entitled to minimum wage, sick pay, paid holiday or employer pension payments.

However, recent cases won by people in the so-called ‘gig’ economy – predominantly drivers – show a trend to extending employment rights.

In 2021, the Supreme Court ruled that Uber drivers should be treated as ‘workers’ rather than self-employed independent contractors.

A 2018 case also established that plumber Gary Smith was not an independent contractor, as stated in his contract with London firm Pimlico Plumbers, but in fact had ‘worker’ status and therefore the right to pursue a discrimination claim as well as unpaid holiday. 

Findlay, who won a High court battle for foster carers to be represented by a trade union, claims foster carers should be given a choice over their employment status.

“I would think most of them would take the limb (b) option where they can be self-employed but have some rights. But give them the option – currently they don’t have the option,” he said.

“Foster carers look after some of the most vulnerable children so society should look after foster carers too. Currently they feel like they are dispensable. They can just be dumped.”

Nearly 70,000 children live with over 53,000 foster families across the UK. This is almost three-quarters of the total amount of children looked after away from home, according to The Fostering Network.

It estimates 6,500 more foster care placements are needed in England alone, while Barnardo’s recently warned of a “crisis”, with retiring foster carers not being replaced.

Findlay added: “Giving foster carers worker status benefits everybody involved and will save the government a lot of money because it will make fostering more attractive and that is a lot cheaper than putting children into children’s homes which as we know can cost £5,000 per week or more per child.”  

Government response

A spokesperson for the Department for Education said it would “consider the impact of the judgement and set out any next steps in due course”.

The government is investing £15 million to boost the number of foster carers and last year increased the national minimum allowance for foster carers in England by 3.55 per cent. However, The Fostering Network claims the increase fails to compensate for years of underfunding and increased cost of living.

The government says it has also committed £44 million to support kinship and foster carers.