A foster carer in England, Ms Anderson, has recently lodged a claim to an Employment Tribunal, in which she argues that she is a worker, and as such, should be entitled to certain employment rights, which include holiday pay and protection from discrimination.
The Claimant is being supported in her claim against Hampshire County Council by the Independent Workers’ Union of Great Britain (IWGB). If successful, this case could have major implications for individuals in similar roles and could open the floodgates for foster carers throughout the UK to have their employment rights recognised.
Currently, UK foster carers are not recognised as workers or employees, despite the fact that they are paid by local authorities (in Ms Anderson’s case a local Council), agencies or charities. However, the recent wave of case law which has challenged the traditional view of what constitutes an employee, a worker, or a self-employed individual, has undoubtedly given confidence to those individuals who wish to pursue a claim related to their employment status.
While this claim seems fairly innovative on the face of it, it is not the first time this issue has been litigated. Earlier this year, an Employment Tribunal in Scotland recognised two foster carers as employees under Scottish law. That case was also supported by the IWGB. The Judge in that case was particularly influenced by the level of control the Council had over those particular Claimants and the mutuality of obligations which it was found existed between the Claimants and the Council ie that the Council was under an obligation to provide work and pay for it, and that the Claimants were obliged to personally perform the work.
Discussing this latest case brought by Mrs Anderson, Dr Jason Moyer-Lee, the IWGB’s General Secretary, has stated: “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…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.”
Employment status is a rapidly developing area of law and this latest challenge follows hot on the heels of the government’s recent review of modern employment practices and the so-called “gig economy”. The Taylor Report, as it is known, recommended a new category of worker, that of “dependent contractor”, and further recommended that a clear distinction should be made between those who are a “dependent contractor” and those who are legitimately, or truly, “self-employed”. In short, the message from this report is that if something looks like employment and has all the hallmarks of such, it should be classed as employment.
Some commentators have raised concerns that this latest employment status challenge could be a stretch too far, in that it could detract from the fundamental purpose of foster caring, which is to provide and create a family life for a child who might not otherwise have that opportunity. The main concern seems to be that it may have a negative impact on a child’s view of a foster family, who, if this latest challenge were successful, would effectively be cared for by someone who is employed to do so.
Employment status is a rapidly developing area of law and it is becoming increasingly apparent that the traditional definition of employee, worker or self-employed individual, may no longer be able to be taken at face value. Businesses should bear this in mind when recruiting and managing staff and if in doubt, seek specific legal advice.
Katie Buchanan is a Solicitor in the Employment Law Department in Worthingtons Solicitors, Belfast and can be contacted on 028 90 434015.