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Can foster carers be employees?

Mark Radford looks at the question of whether or not foster carers can be employees following a recent Employment Appeal Tribunal case.

Are foster carers employees? This was the question faced by the Employment Appeal Tribunal (EAT) in the case of Glasgow City Council v. Johnstone UKEATS/0011/18.

The relationship

In their decision, the EAT focused upon mutuality of obligation and whether there was a contract in place that put the relationship on a different level to agreement between the parties required by the Regulations governing the relationship between a local authority and its foster carers.

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In the circumstances of this case, the EAT concluded there was a contract of employment in place for the following reasons-

  1. The foster carers and the council had entered into a written agreement (“the Agreement”). The Agreement went much further than the terms required by the law and as such was a contractual arrangement intended to create legal relations.
  2. The foster carers received remuneration and not just an allowance designed to cover the foster carer’s costs. The remuneration was payable irrespective of whether they were fostering a child at the time and was paid in addition to a separate allowance payable when they had a child in their care.
  3. The foster carers were entitled to paid annual leave, which could be taken with or without any children who happened to be in their care at the time.
  4. The council exerted a high degree of control over the foster carers that was in keeping with the significant level of control an employer has over an employee. For example, the foster carers had to attend weekly meetings and undertake training irrespective of whether they had a child placed with them. The foster carers were also not permitted to take employment elsewhere whilst the contract subsisted.

The outcome

The EAT declined to comment on whether foster carers covered by a normal arrangement were employees, but did give some interesting insights into what the outcome of such a case might be.

The EAT commented that the Agreement required by the Regulations governing the relationship between a local authority and its foster carers (whether in Scotland or in England) is not actually a binding contract but the acceptance by the parties to abide by the requirements of the statutory framework.

Thus, it could be argued that anything that is added to a foster carer agreement that is above and beyond the exercise of a statutory duty or a power to the extent it is required to make the agreement workable, may turn the Agreement into a binding contract and open up an argument that foster carers are workers or even employees in employment law terms.

Conclusion

The learning point would appear to be that if a local authority wishes to ensure that its foster carers cannot be regarded as employees or workers, it should ensure that the Agreement it has with the foster carers sticks as closely to the statutory requirements, which govern the relationship, as possible and should not offer any additional benefits or impose additional obligations.

Mark Radford is a senior solicitor at Invicta Law. He can be contacted on 03000 416592 or This email address is being protected from spambots. You need JavaScript enabled to view it..

 

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