Legal challenge aims to extend LA employment rights to foster carers

A legal battle has been mounted to give foster carers the same employment status as other local authority workers.

If successful, the bid could see foster carers entitled to holiday and sick pay as well as pension payments, all of which they are currently denied through being classed as independent contractors. 

They would also be able to take local authorities to an employment tribunal and be legally protected if they whistle blow.

A test case involving three London foster carers who claim to have suffered discrimination by their local authority is due to be heard at the London Employment Tribunal next week (6-8 February).

The trio maintain they are being denied their human rights because they currently have “no effective legal remedy” for pursuing their complaints. 

The three claimants are Pauline Oni against the borough of Waltham Forest; Paulette Dawkins against Bromley and Angela Reid against Haringey. 

Speaking to PSW, Oni said: "It is very unfair and I do feel that foster carers have had a tough deal for decades. There is no holiday or sick pay or pensions or protection.

"When things go wrong you are really up against it because you are on your own and it is very stressful."

Next week's hearing will establish whether they have a legal right to be heard in an employment tribunal court.

Jacqueline McGuigan, of TMP Solicitors, who is representing the three carers, said: “We are fighting for employment status for foster carers. At the moment they have no status which is shocking. I have been an employment lawyer for years, and when I was told foster carers don’t have any employment rights I had to do a double take. 

“They are looking after the state’s children, they are carrying out the role that the government has to carry out looking after these children. We see them the same as social workers. They are caring and looking after children.”

The three foster carers are being supported by the National Union of Professional Foster Carers (NUPFC).

The NUPFC’s general secretary and founder Robin Findlay believes if the bid is successful, foster carers across the UK could be entitled to holiday and sick back pay, which in some cases could amount to thousands of pounds:

He said: “What we are trying to prove with this tribunal is that all foster carers are workers and that they should get the same rights as employees.”

Findlay claims foster carers also need employment status because currently they can be too easily intimidated by local authorities.

“Foster carers know if they complain about something the next thing that happens is a report will get written saying we don’t think this foster carer is suitable because of this or that,” he said.

“When a foster carer whistle blows about something they can be bullied and intimidated. What happens in a lot of cases is as soon as foster carers fall out with social services their foster children get moved and the money stops.

“Having children removed is traumatic for foster carers and for the children – they are like family.”

Findlay, who has a background in immigration law and has been a fosterer for Haringey Council, claims he has faced intimidation just for creating the union: “Haringey said to me, ‘You can either be a foster carer or be in the union’. I replied, ‘That is why the foster carers union is being formed - so you can’t say things like that."

Under UK employment law rules, there are three categories of people in employment: employees, who have full employment rights; ‘workers’ (also referred to as limb (b) status) who have some rights such as paid holiday; and independent contractors with no employment rights.

A 1998 case known as W v Essex effectively ruled that whilst foster carers have some features of being employed, such as payment of allowances and expenses, they are not in an employment contract.

Foster carers get paid a weekly allowance rather than a salary and enjoy tax benefits. However, they are not entitled to minimum wage, sick pay, paid holiday or employer pension payments.

However, recent cases won by people in the so-called ‘gig’ economy – predominantly drivers – show a trend to extending employment rights.

In 2021, the Supreme Court ruled that Uber drivers should be treated as ‘workers’ rather than self-employed independent contractors.

A 2018 case also established that plumber Gary Smith was not an independent contractor, as stated in his contract with London firm Pimlico Plumbers, but in fact had ‘worker’ status and therefore the right to pursue a discrimination claim as well as unpaid holiday. 

According to The Fostering Network, almost 70,000 children – the majority of the 98,000 children who are in care away from home – live with around 55,000 foster carers.

Government figures show a loss of 1,050 fostering households in the last financial year. The Fostering Network estimates a further 6,000 fostering families are needed in England alone.

McGuigan and Findlay believe granting foster carers employment rights could have a transformational impact on recruitment.

The Department for Education, Waltham Forest, Bromley and Haringey councils were contacted for comment.

The tribunal hearing can be watched live online. Use pin code 8681