Tribunal to hear test case over employment rights of foster carers

The Employment Tribunal will tomorrow (6 February) begin hearing a legal challenge to a 25-year-old ruling that foster carers do not work under a contract.

The three claimant foster carers, part of the National Union of Professional Foster Carers (NUPFC), assert that they work under a contract whether as employees or as workers, and that the denial of rights such as freedom from discrimination, whistleblowing and holiday pay amounts to “unjustified Article 14 discrimination in the enjoyment of Convention rights”.

The claimants are Pauline Oni against Waltham Forest Council, Paulette Dawkins against Bromley Council and Angela Reid against Haringey Council. 

A preliminary hearing was heard in June 2023 at the East London Employment Tribunal to hear the factual evidence. The foster carers told the Tribunal about the problems faced by many of the thousands of foster families in England and the lack of any legal remedy to challenge the injustice.

The claimants are due to appear in the Employment Tribunal from 6-8 February for legal submissions.

In 1998, the Court of Appeal, in 'W v Essex', decided that foster carers did not work under a contract. This left those who looked after and accommodated the country's most vulnerable children without employment protection, said the NUPFC.

Robin Findlay, founder of NUPFC, said: “There is a massive shortage of foster carers, so carers who can give respite to allow full-time carers to rest are few and far between. The necessity of rest is not written into policy, meaning many carers go without any time off, including when sick.”

He added: “When advocating for a child, the constant threat of Standard of Care investigations and the removal of the child are used to keep the carer quiet and often confine carers to work and live in distressing environments that subsequently impact the child in their care.”

The claimants are represented by Jacqueline McGuigan and Ella Lawrence, Solicitors at TMP Solicitors LLP, instructing Rachel Crasnow KC and Chris Milsom of Cloisters.

The Equality and Human Rights Commission is supporting the claim.

Lottie Winson