We wrote in October that the Employment Appeal Tribunal (EAT) was hearing an appeal in the case of Glasgow City Council v. Johnstone UKEATS/0011/18 regarding the employment status of foster carers. The EAT has now handed down its judgment, upholding the Glasgow Employment Tribunal’s original decision that the foster carers, in this particular case, were employees of Glasgow City Council.

In reaching its decision, and rejecting the Council’s appeal, the points the EAT considered included the following:

  • Mr and Mrs Johnstone had entered into a written agreement with the Council. Although this included the statutory terms required to be agreed with any foster carer, it also went further. This was not just a written reflection of a statutory agreement, but a contractual arrangement intended to create legal relations.
  • The contract which existed was, in fact, an employment contract.
    • The Johnstones received a professional fee (and not just an allowance). They received this fee irrespective of whether they were fostering a child at the time.
    • The Johnstones were entitled to paid holiday time – and did not have to take any children in their care with them.
    • The Council had significant control over the Johnstones. They were required to attend weekly meetings and provide daily reports. They were not permitted to take employment elsewhere whilst working with the Council.

The EAT found that there was sufficient mutuality of obligation and control for an employment relationship to exist between the Council and the Johnstones.

It is important to note that this case was very fact specific. The Johnstones were not “ordinary” foster carers, but worked with the Council as part of its multi-treatment foster care scheme. This gave them additional obligations to the Council, and the Council additional obligations to them.

This case does not mean that foster carers generally will be employees of the Council with which they work. It is, however, yet another reminder that an employment relationship can exist, even where that is not what the parties intend, and not what the contractual documentation provides for.