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.
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  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  EWCA Civ 1139 which dealt with a question of vicarious liability in a foster care situation.