A foster carer has filed an employment tribunal claim against Hampshire County Council for unpaid holiday in a case that could open the doors for thousands of foster care workers to have their employment rights recognised.
The Independent Workers’ Union of Great Britain (IWGB) has submitted an employment status and unpaid holiday claim against the council on behalf of Sarah Anderson, who chairs the IWGB’s foster care workers branch.
Employee, worker or contractor?
The union will argue that as a result of the relationship between Anderson and the council, she should be considered a “worker” and entitled to rights, including holiday pay.
“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,” said Anderson. “We can’t advocate or look after our children properly if our rights aren’t recognised and protected.”
While they are paid by local authorities, agencies or charities to look after children, foster care workers in the UK are not recognised as workers or employees.
But the IWGB has started to challenge this. In June, the Glasgow employment tribunal recognised two foster care workers as employees under Scottish law, in a case brought by the IWGB.
“Many foster care workers are highly qualified, put in very long hours, are rigidly supervised and have foster care as their main source of income,” said Dr Jason Moyer-Lee, the union’s general secretary.
“This case is not about whether or not foster care is a form of work – that ship has sailed – this case is whether those workers should be entitled to the employment rights the rest of us take for granted.”
A previous case at the Court of Appeal ruled that foster care workers could not be recognised as workers, as they do not have contracts, but the IWGB will argue that this case is different on the facts and that under European law contracts are not necessary to establish an employment relationship.
There were 44,320 approved fostering households in England in March 2016, according to Ofsted.
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Hampshire County Council said it was not aware of any case having been brought against it, at this stage, regarding worker status in relation to foster carers.
It added that there is a clear line of case law from the Employment Appeal Tribunal (Bullock v Norfolk CC [2011] UKEAT) which states unequivocally that foster carers are not ‘workers’, as well as Court of Appeal authority to that effect such as in the case of NA v Nottinghamshire County Council [2015] EWCA Civ 1139 which dealt with a question of vicarious liability in a foster care situation.
6 comments
This should have started years ago. The way carers are treated is not as professional by many organisations. It needs to change. Applaud your courage and determination
My wife and myself have been foster carers for the last 30 years, we do not get recognised as being professionals or treated in the manner we deserve.
Like others we are on call 24/7 and paid at minimum wage, At least most of the time it’s Head’s for Beds and no assessment made to which skills group the children should be placed
We foster for walsall social services… Very. Poor no respite no holidays.
Good luck,
OK, so what will apply ?
Let’s start with the Working Time Directive – with daily and weekly rest breaks ? – so what will happen to the children when these workers “clock off” ? – from memory, for a minimum of 11 hours between ‘shifts’.
Are children also to be required to leave home during the weekly rest of two days per fortnight ?
Annual leave – do they propose to go on holiday and not take the children with them ? If the children did go, would that then count not as annual leave, but working time ? Would the children be required to leave the home of the Foster Worker if the Foster Worker be on annual leave, but not go away ?
Sick Leave. Obviously, workers should not be required to work when unfit to do so. So, where will the children go when the Foster Worker is unfit for work due to illness ? – again, would they be required to leave the home of the Foster Worker ?
Or is it proposed that Foster Workers pick and choose which employment rights apply and which don’t ?
I am also slightly bewildered by the comment “We can’t advocate or look after our children properly if our rights aren’t recognised and protected.†So, logically, if Ms Anderson claims that they have not had their rights recognised and protected thus far, it then follows that they have not (thus far) been able to ‘look after (their) children properly’.
Now, either that’s a damning admission, or is logically untrue. I would be grateful if Ms Anderson could clarify for us which it is.
Point well made about the Working Time Regulations, Length of working day 13 hours maximum, ii hours break between next shift/working day, one day off a week or two together over 14 days.
Income tax, NI Contributions and auto entrol pension payments will be due, uncertain what the net benefits will be if successful in their claim and of course if successful they would be entitled to the National Minimum Wage of £7.50 ph only for 13 hours a day for 6 days in any one week as the law stands, Private Fostering agencies would be affected.
This is a no win situation for all.
Sarah Anderson has been incredibly brave in highlighting the fact that Foster Care Workers (FCWs) currently work without any rights and protections. A state of affairs that anyone with any concern for what is fair, right and proper cannot support in continuing. Foster Care Workers deserve all of the rights and protections other Workers already benefit from and others, in addition, that relate to their particular circumstances and vulnerabilities. Of course FCWs should take children on family holidays, but they should also be able to have paid holidays themselves. FCWs care for very traumatised children and young people and their distress often manifests in extremely difficult to manage behaviours. It isn’t reasonable to expect anyone to cope with this 24/7 without a break and even less so during times of illness. Once this is recognised thought will need to be given to how best FCWs can be supported in taking breaks, but this is perfectly possible. During times of illness, for example, arrangements might be made for another Worker to look after the child/young person during the day (particularly if that young person is out of school/college/employment, which can often, sadly, be the case with teenagers). Advocating on behalf of children and young people is an important part of a FCW’s role and Sarah is right, again, to highlight the difficulty FCWs face in doing this. FCWs currently work without any rights and protections and this means their services can be dispensed very quickly if they step on the wrong person’s toes. Of course this needs to change. Well done Sarah for highlighting this. I greatly admire your bravery!
Onlyright has rightly and properly exhorted the principle that ‘everyone deserves a break’, but with few practical responses on some of the real day to day practical dilemnas that Phil Barnett highlighted.
I would suggest that a troubled (or traumatised) child would gain few benefits from being pushed from pillar to post during a period of foster care – indeed it might even further their sense that it was ‘just a job’ for some random FCW and nobody really cared anyway.
There are some jobs you just don’t clock off from. FCW is one of them. If you don’t like it do something else.
Breaks are afforded between fosters – and this is in the control of the FCW to some extent by their not taking on the next foster.
My suspicion is that this whole affair is just a stalking horse for an increase in overall income.
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