Adding to the current raft of employment status challenges, two foster carers are seeking to raise an Employment Tribunal claim against Glasgow City Council.

Background

In September 2016, foster carers hit the news when a group voted to unionise and join the Independent Workers Union of Great Britain (IWGB). Now the IWGB is supporting foster carers, James and Christine Johnstone, in their bid to be recognised as employees.

Why does it matter?

As we have previously blogged here and here, disputes about employment status primarily occur because UK law provides different levels of protection for employees, workers and self-employed contractors:

  • Employees have the most wide-ranging employment rights, including the right not to be unfairly dismissed;
  • Workers have an intermediate level of rights, including the right to receive the minimum wage and paid holidays;
  • Self-employed people have very little protection as they are considered to be in business on their own account.

In this case, Mr and Mrs Johnstone are seeking compensation for unlawful deduction of wages and victimisation as a result of whistleblowing. If the couple are not deemed to be either employees or workers their claims will fail.

Workbox users can access more detail on employment status.

What’s the current position?

The definitions of employee and worker under the Employment Rights Act 1996 both require that there is a contract (whether express or implied) between the parties (although an extended definition of worker applies in whistleblowing cases). Foster carers have agreements with local authorities but, historically, these have not been considered to be contracts. As a result, to date foster carers have failed to qualify as either employees or workers.

In the 2011 case of Bullock v Norfolk County Council, involving a council that refused to allow a foster carer to be accompanied by a trade union representative to a meeting to discuss the potential withdrawal of her approval to foster, it was observed that the relationship between a foster carer and a local authority is governed by statute and is therefore statutory rather than contractual in nature. For this reason, Ms Bullock did not qualify as either an employee or a worker.

This followed the Court of Appeal’s decision in Rowlands v City of Bradford Metropolitan District Council, in which a foster carer was not found to be ‘in employment’ for discrimination purposes.

It remains to be seen whether, in light of recent employment status decisions, a different approach will be taken in this case. If it is, this could have substantial implications on the rights of foster carers.