Union members bring legal action over full worker rights for foster carers
Three foster carers are seeking to overturn a Court of Appeal case in 1998 that said they are not employees nor workers.
The 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”, revealed Cloisters chambers.
The preliminary hearing was heard last month at the East London Employment Tribunal, and the claimants are expected to return in December for legal submissions over two days.
The claimants are represented by Jacqueline McGuigan, Solicitor at TMP Solicitors LLP, instructing Rachel Crasnow KC and Chris Milsom of Cloisters.
McGuigan said that for the last 25 years, foster carers have “tried and failed” to pursue claims for discrimination, whistleblowing, and unfair dismissal.
In NUPFC v Certification Officer [2021], the NUPFC appealed a decision by the Certification Officer to reject its application to be entered on the list of trade unions.
The Court of Appeal allowed the appeal and said that for the purpose of forming a union only, foster carers worked under a contract.
Following this, the three union members are pursing the “full worker rights”, including in relation to whistle blowing, race and age discrimination, breach of national minimum wage and unpaid holiday pay.
The Equality and Human Rights Commission support the claimants in the ongoing litigation.
Outlining the importance of what she describes as an “employment status battle”, Jacqueline McGuigan said: “We are arguing that there is nowhere for these foster carers to go when they have a dispute as important as discrimination. The Secretary of State says they can already bring a claim in a county court for discrimination. This issue is very much in dispute.”
She added: “This is enormous for Government. If we succeed, it may mean that foster carers should have been paid holiday pay from when the working time regulations came into effect in 1998.
“So for anyone who has been continuously foster caring since then, they could have a backdated holiday pay claim going back 25 years.”
Prior to the preliminary hearing, the National Union of Professional Foster Carers said: “This case will reveal failings in social care system for children in England. Foster carers are at the front line of caring for the most vulnerable children in our society.
“The Secretary of State for Education has joined the proceedings because the issues are so important to the future of the social care system. If you care about children’s rights and equality of justice please get behind us and support us.”
The Secretary of State for Education has been approached for comment.
Lottie Winson
