The landmark employment tribunal decision in the case of Oni & Ors v London Borough Waltham Forest & Ors is being carefully watched by many as it could affect around 57,000 foster carers in the UK.
The significance of the proceedings was underlined by the number of interested parties involved in the proceedings in addition to the six main parties. The main parties were three foster carer claimants and the respective respondent London Borough councils on behalf of which the claimants provided foster care. The Secretary of State for Education was permitted to take a formal role as an ‘intervenor’ (an interested party which is permitted to make representations to the tribunal on its own behalf or in the public interest); and the claimants were supported by the National Union of Professional Foster Carers and the Equality and Human Rights Commission (EHRC).
Facts
The claimants, a group of foster carers who each provided care on behalf of their respective local authority, alleged that they were employees and/or workers engaged by the relevant local authority. Further, they sought to pursue claims for holiday pay, national minimum wage, discrimination and whistleblowing detriments as a result of raising concerns in relation to health and safety. The local authority disagreed and, in defending the proceedings, asserted that granting foster carers employee status was not in foster children’s best interests.
The Employment Tribunal’s decision
Contrary to the previously established position, the tribunal decided that the foster carers could bring claims for discrimination and whistleblowing in the employment tribunal. .
This is in stark contrast to the existing Court of Appeal decision in W v Essex County Council [1999], which established that, as foster carers do not work under a contract - instead their relationship with the local authority is governed by a statutory regime which sets out the obligations for both the local authority and the foster carer - they cannot be workers and so are not able to purse claims in the employment tribunal.
Although the employment tribunal recognised it was bound by the Court of Appeal decision, it also considered that preventing claims for discrimination and whistleblowing being pursued simply because of the lack of a contract infringed foster carers’ human rights, specifically Article 8 (right to respect for private and family life) and Article 10 (the right to free speech), and therefore the Human Rights Act would effectively ‘trump’ the Court of Appeal decision so as to allow the claims to proceed. Accordingly, the tribunal decided that the claimants were able to proceed with their claims for discrimination and whistleblowing in the employment tribunal. As the wages and pay claims did not affect the claimants’ human rights, they remain prohibited and will not proceed.
An appeal of the employment tribunal’s decision is anticipated from the respondents, especially in light of other recent caselaw on the issue of worker status.
Comment
The decision raises interesting questions.
In the ever-changing world of employment rights and in light of the Labour government’s promise to ‘Make Work Pay’ and support caregivers, is there is palpable friction between those commitments and the lack of worker’s rights for foster carers? Or, in light of affordability issues and in any event, should we continue to rely upon foster carers’ sense of public service and their commitment to look after children for ‘ love, not money’?
What does this mean?
This decision should be on the radar of HR professionals and directors in Adult & Social Care and signals the need for local authorities to be accountable for their treatment of foster carers. Amongst other measures, clear procedures for addressing complaints and ensuring fair treatment must be established to foster a supportive environment for these essential caregivers.