Employment Status and Rights
The case concerned James and Christine Johnstone, who were in dispute with the Council over what they viewed as unlawful deduction of wages.
They took their dispute to the Employment Tribunal, with Glasgow Council resisting the claim on the basis that as foster carers the couple didn’t have the necessary employment status to have their case heard by the Tribunal.
Only people classed as employees or workers can bring an unlawful deduction of wages claim to the Tribunal. Foster carers have traditionally been viewed as self-employed and therefore are not entitled to most of the basic employment rights available to workers and employees, such as protection from unfair dismissal, whistleblowing protections and minimum holiday entitlements.
However, following a preliminary hearing, the Tribunal has now found that the level of control and mutuality of obligations that existed in the relationship meant that the couple had the status of employees, and therefore their case is able to proceed to a full hearing.
It must be noted here that Mr and Mrs Johnstone were employed in a distinct category of foster carers which precluded them from holding other employment, which is not the norm for ‘mainstream’ foster carers, and that whilst this judgment is notable, it does not apply to the majority of foster carers who do not have the same mutuality of obligation with the Local Authority.
The Independent Workers of Great Britain (IWGB) union, which had supported the couple in their case, described the decision as a ‘massive step forward’ for foster carers.
“This is a massive victory for employment rights for foster care workers in the UK,” said IWGB General Secretary Jason Moyer-Lee. “We would encourage Glasgow City Council to accept the decision and take immediate steps to rectify their unlawful behaviour. Other local authorities should take note.”
However, the Employment Judge did make it clear that this decision was reached purely on the facts of the case and should not be taken as a judgment on the wider question of the status of foster carers in general.
“In finding for the claimants in this case I am not in any way making a finding about the status of ordinary mainstream foster carers,” explained Judge Ian McFatridge. “What I am saying is that on the basis of the facts in the current case, the claimants were employees of the respondents.”
Reaction to the Decision
Fostering charity, The Fostering Network, has welcomed the Tribunal’s decision.
“Even though this judgment does not set a precedent for all foster carers, it is very clear that there can be no excuse for a ‘business as usual’ attitude towards fostering,” commented chief executive, Kevin Williams.
“In our recent State of the Nation’s Foster Care survey only a third described out of hours support as ‘could be better’ or ‘poor’ and almost a half of foster carers did not have an agreed training plan for the next year,” he added. “The Fostering Network has long campaigned for change in these and other areas – such as the need for foster carers to be covered by whistleblowing legislation.”
Glasgow Council is said to be considering the terms of the decision, reports the Herald and in the circumstances the decision may well be appealed to the Employment Appeal Tribunal. It must also be highlighted that this judgment was from a Preliminary Hearing and full hearing on the merits of the case is still to be allocated.
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