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Employment Law Case Update: Foster Carers

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Employment status continues to be an important topic for employers, as demonstrated by the latest ruling for foster carers in Glasgow.  Our Employment Law team here reviews the case, the ruling and what this means for employers.

Two foster carers, Jimmy and Christine Johnstone have been held to be employees of Glasgow City Council.  This case breaks new ground.  There have been a number of cases previously relating to foster carers and ordinarily they are not held to be employees or workers.  This is because generally speaking they do not have any contract with the Local Authority who engages them and are purely engaged under a statutory relationship.

In the Johnstone case the claimants were denied help for vital expert support in caring for a foster child with serious mental health issues.  When they raised this with the Council they were told that there was no duty of care owed to them because they were not employees. Their situation was different to normal ordinaryfoster carers.  In their case the Council had (via the Foster Agency) provided a written agreement which it is obliged to do if there are particular financial arrangements.

This situation differed from the ordinary in that it was a full time position and the Johnstones were not permitted to work in any other role whilst being a foster carer; they were paid a professional fee for their services whether they had a child placed with them or not; they were paid an additional allowance when they had a child placed with them and they were allowed to take holidays without the children during the course of the year whereas most foster carers are obliged to take the children with them if they are away on holiday.

Employment status is usually dependent on a finding that the employeereceives a wage for their services and that the employerhas a degree of control over them about how they carry out their duties.  The Employment Tribunal (ET) considered these issues and decided on the facts of their case that they were employees.  The Council appealed the initial decision but the Employment Appeal Tribunal (EAT) confirmed the employee status.

The Johnstones had been receiving an annual fee payment of £32,000 for their fostering services. The EAT expressed this payment had the appearance of remuneration as opposed to a sum supplied to cover the claimants’ “costs” which largely impacted them upholding the first decision. The level of control the council had over the Johnstones and the manner they delivered their fostering services further assisted in their decision.

Both the Johnstones and Independent Workers Union of Great Britain expressed they should also be permitted to claim for other rights given to those with employee status such as holiday pay and sick pay and stated they would campaign until such rights are afforded to foster carers.

Glasgow City Council has since stated it is now carefully considering the implications of the judgment” but that the findings in this judgment do not extend to the status of mainstream foster carers”.

This case highlights for employers the dangers of it becoming unclear whether a worker has employee status or not - for example with self-employed contractors - and why it is important that employment legislation and advice is followed regarding this.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.