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.
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’”.
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.