Foster carer makes tribunal claim over employment status

The foster carer is arguing that she should receive holiday pay under EU employment law

court work
Photo: makibestphoto/Fotolia

A foster carer is challenging a local authority about her employment status in a case that could have major implications for thousands of carers and for councils.

The foster carer, Sarah Anderson, has submitted an employment status and unpaid holiday claim against Hampshire council to an employment tribunal in a bid to gain employee rights for her role.

Supported by the Independent Workers’ Union of Great Britain (IWGB), she argues that she should be considered a “limb” worker and be entitled to employee rights.

Previous claims have been denied in court. A 2011 Employment Tribunal Appeal ruled that foster carers were not workers within the meaning of the Employment Rights Act 1996 and Employment Relations Act 1999. A 2015 Court of Appeal hearing about whether a council was responsible for foster care abuse also said carers were not employees.

‘Disposable workforce’

However, Anderson and the IWGB argue that, under European law, contracts are not necessary to establish an employment relationship. They say that she has an employment relationship with the council, as defined in European law, which should entitle her to four weeks of paid leave in line with the EU Working Time Directive.

The union said that if the claim was successful, this could open the door for “thousands” of foster carers to have their employment rights recognised.

Jason Moyer-Lee, IWGB general secretary, said: “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.”

Anderson said foster care workers were “exploited” and treated as a “disposable workforce”.

“We can’t advocate or look after our children properly if our rights aren’t recognised and protected,” Anderson said.

Hampshire council said it was not aware of any case being brought against it regarding the employee status of foster carers.

It added that case law stated “unequivocally that foster carers are not ‘workers’”.

‘Risky’

John Simmonds, director of policy and research at CoramBAAF, told Community Care employment status for foster carers could be a “risky” move.

He said foster care is “fundamentally” about the child and creating a family life for them.

“What’s the child’s perspective on being cared for through the intimacy of a family life by someone who is employed to care for you?”

He also said it would change the foster carer’s role to become a recognised employee.

“I think be careful what you wish in this respects. Being an employee will change so much both as a foster carer point of view and as a child point of view,” Simmonds said.

27 Responses to Foster carer makes tribunal claim over employment status

  1. Bob October 11, 2017 at 11:38 am #

    Do we assume then that Sarah Anderson would expect to lose her tax exemption (first £10,000) at the same time, as she would be an employee of some sort?

    • Petra October 11, 2017 at 8:17 pm #

      Well us workers pay full tax and NI.. so let’s ask her to pay that on her 70k plus a year she must get

      • Tim October 12, 2017 at 2:31 pm #

        I’d anticipate that she will be getting very little at the end of the day. If you look at the amount foster carers get it is mainly an allowance for the addiional cost of caring for someone. It would be like a truck driver getting paid a thousand pounds a month and spending £800 of that on petrol. In reality that earns £200 and there wouldn’t be much tax to pay on that so it’s hardly a ‘you lucky tax exemt person’ type scenario.

  2. Santino October 11, 2017 at 4:44 pm #

    Let,s no forget that Foster carers get National Insurance Credits, I guess this would need to stop, and would also have to contribute to a pension scheme, on a annual fostering allowance of say £25,000, the total annual deductions would around £5,000, thus no real gain for the sake of a couple of weeks paid annual leave, or am I missing something here.

    • Cath October 11, 2017 at 8:41 pm #

      I don’t know any foster carer that works for a local authority that is earning £25, 000 per year. If so I’m with the wrong authority.!

      • Santino October 12, 2017 at 10:49 am #

        Correction, Fostering Agencies pay around £450+ per week as opposed to LA’s which pay on average £190 per week depending on age of foster child, the current status does take income tax deduction into consideration but this would have to change if successful in the above case, no winners here, Fostered children will be the pawns in this pursuit for additional annual leave payments.

      • Tim October 12, 2017 at 2:36 pm #

        You might be Cath. I know many that receive this and much more if siblings are placed. However Santino is incorrectly seeing that full amount as pay when it is an allowance and only a small amount is pay. The comparison is no different than a worker is paid £1200 per month as their pay but then told they have to pay their office rent for £800 and utilities for £200, left with £200 at the end of the day taking away costs. (im on a role with examples)

        • Tim October 12, 2017 at 2:39 pm #

          Could only see Santino’s first comment before posting my first comment which came after santino’s second comment. Oh the joys of waiting for moderation…..

  3. Santino October 11, 2017 at 6:05 pm #

    It is highly unlikely that the foster carer will be successful as what would follow winning her case to be classed as a worker would entitle her to the National Minimum Wage of £7.50 ph which amount to over £1,200 per week and of course the Working Time Regulations does not allow for continuous work for more than 12.5 hours per day.

  4. Petra October 11, 2017 at 8:18 pm #

    Oh yes ! Let’s put foster children into respite for five weeks a year ..child focused ! NOT

    • Tim October 12, 2017 at 2:37 pm #

      I was concerned about the same thing. Would it create a minimum expectation on time off now thinking of it simply as ’employment’

  5. Neil Parkinson October 11, 2017 at 8:22 pm #

    My foster carers took me on holiday with them, part of a family not a job.

  6. Hels October 11, 2017 at 10:10 pm #

    Can you really pick and choose what areas of the working time directive you want to have recognised ? As a foster carer, furthermore would this include independent foster carers?

  7. Barb October 11, 2017 at 11:07 pm #

    I am worried this is such tricky ground for all of the above arguments, however also it would surly mean a contract of employment ? So on the positive could mean foster carers of which there are many, no longer refusing to do normal day to day things such as taking a child to school as this would be in a job description which is a basis for a contract of employment ? #

    Lets face it there are many (not all but many) foster carers that refuse to do so many things for a child that at least employment rights mean a contract may mean these things can be written in

    Wonder how many foster carers are saying YES ! we would be an employee have really thought it all through, nothing is every that black and white and this could be a really stupid move !

  8. keithbc6472 October 12, 2017 at 12:52 pm #

    It is some time since I was working with children looked after but when I was, foster carers were not ‘paid’ for their work but received an ‘allowance’ (only)
    to offset costs of looking after a child

  9. Janet October 12, 2017 at 2:30 pm #

    Hi .
    I am both a foster carer and social worker.
    So i do pay taxes.
    I work for a LA please let me tell you that if i didnt love my children i couldnt take what they hand out to me.I have just had an electrians bill for £200 because yet again my foster child has ripped the light fitting out and broken the sockets in the bedroom.I wont list the other damage

    . Its 24 hours a day. We have a nocturnal child who is waiting for CAMHS, has beenwaiting for over a year as she has to settle before they can consider? yes that old chesnut!?
    I am at times glad to go to work to get sanity.
    My husband takes over as we both work partime.
    Its also good to point out that we cant afford to ‘just’ foster as if you dont have a placement you dont get paid.We have often spent weeks waiting for a matched child to be told ‘oh not needed’ .
    So see this from both sides?
    It a little like agency staff.The moans are always about pay and conditions. Can’t we all have good pay and conditions? We are a rich country.My children are its future lets get it right ..for them!!

    • Ann October 14, 2017 at 10:11 am #

      Well said Janet – I am in a similar position having been a foster carer for most of the past 30 years and a social worker for 25. I wouldn’t even like to start thinking about the costs over the years! It is the uncertainty of income that is the problem -if you go for weeks between placements you still have to keep the roof over your head and it’s a bigger roof if you are providing spare bedrooms for fostering….. then, many carers including myself continue to support young people in adulthood – just as parents do….. just the usual help them when they are broke, pay a bill, contribute towards a wedding /christening, buy clothes for a new baby, phone credit, shopping……. I think the point is about giving carers a secure income whether a child is in placement or not rather than whether this is employment.

  10. Hels October 12, 2017 at 6:12 pm #

    I find it upsetting that children and young people are referred to as placements.

  11. Terry Unicorn October 12, 2017 at 7:48 pm #

    What I think foster carers really want is more financial security – not going weeks unpaid because matching is in the hands of others. They want more recognition – they are trained, and in many cases, qualified professionals. They want more respect – they are often spoken down to by social workers, not surprising as their current status encourages that. Lastly, they want to advocate for their placements without the fear of being ostracised or worse. If they can get these rights how they’re employed isn’t so important.

    • Carolyn October 14, 2017 at 7:37 am #

      This is definitely what we want, not paid holidays, we always take the children with us. We are LA carers and love what we do, we just believe that the enormous difference between agency pay and LA pay is so unfair, we look after the same children,we meet all the same needs of the child. But the agency pays double or triple what the LA pay. Yet all this money comes from the same pot LA. How is this a fair system

  12. Mike October 12, 2017 at 10:02 pm #

    Been fostering for years, always thought you choose to foster for the benefit of the child/children. You actually volunteer to provide the service to help children. Unfortunately many in the fostering profession see it as a way to earn money and the child comes as an after- thought.

    • Carolyn October 14, 2017 at 7:47 am #

      We still have mortgages to pay, we love and care for all our children, but can’t do it on fresh air and love. We don’t volunteer, it is a 24/7 how can we do a full time job as well to earn money to live on

  13. Lisa Green October 12, 2017 at 11:52 pm #

    I am torn, I do believe foster carers deserve s decent wage and in LA’s they should be paid more. however, I worried about foster children’s perception of this and them thinking they are only being looked by their carer just because it is a job.

  14. Lynne Brosnan October 13, 2017 at 8:21 am #

    As you are both a foster carer and social worker Janet you are able to put a balanced view across which is pleasing to read. I still have contact with many that I fostered and it has been lovely to see them grow and lead fulfilling lives some now with families of their own. They know I am always here for them.
    Being a foster carer is not easy it can be extremely exhausting and challenging as well as expensive when frustration leaves a child/young person destroying walls breaking things etc. Absolute exhaustion when they come in at two and three in the morning and you have had to report them missing. Then informing that they have returned and waiting for police etc to visit to check all is OK. That can be many times in a week. As well as worrying that they are OK.
    Sometimes it is not safe to take them on holiday as it is difficult to keep them safe especially abroad. Sometimes they don’t want to go on holiday.
    I agree wholeheartedly the child should be the main focus but very tired worn out foster carers should be taken into consideration.
    I agree it is not advisable for foster carers to become an employee as employment law would not allow working twenty four hours seven days a week. Even at minimum wage would be way beyond budgets.
    I do feel talks could bring a compromise. I do think foster carers should be able to have a paid holiday if nothing else to recharge their batteries to be able to do the very best for their foster child/ young person.

    • londonboy October 16, 2017 at 9:08 am #

      This is my difficulty here.
      I quote
      ”-It can be extremely exhausting and challenging as well as expensive when frustration leaves a child/young person destroying walls breaking things etc. Absolute exhaustion when they come in at two and three in the morning and you have had to report them missing. Then informing that they have returned and waiting for police etc to visit to check all is OK. That can be many times in a week. As well as worrying that they are OK.
      Sometimes it is not safe to take them on holiday as it is difficult to keep them safe especially abroad. Sometimes they don’t want to go on holiday.”

      Many birth parents lose their children to the State because of this issue ‘Beyond parental control’ its called I think? Many of these children have complex undiagnosed difficulties and they and their families need help from services around this. For many it never comes or it is not the right help ( parenting classes in lieu of positive behaviour support) What families don’t need is for their child to be taken to live with strangers who have exactly the same issues with the child and do’nt feel the same ties and get paid to do this. Can no-one see how crazy that is, how bad for families and children?

  15. Lynne Brosnan October 13, 2017 at 8:26 am #

    Terry Unicorn your comments came after I had submitted my comment. I agree with your comments a little more respect would also help foster carers feel more valued.

Leave a Reply