These are the most serious types of claims you can bring in an employment tribunal.

A trade union fighting for foster carers to be given the same rights as other council workers, including holiday and sick pay, have hailed a landmark victory.

In a case brought by three foster carers who claimed they had suffered discrimination by their local authority, a tribunal judge ruled on 21/01/2025 that they have the right to make Employment tribunal claims for discrimination and whistleblowing against their local authorities and Independent Fostering Agencies.

Until now, foster carers have been treated as independent contractors with no such employment rights. They could be hired and fired without recourse, something foster carers claim is a denial of their human rights.

The National Union of Professional Foster Carers (NUPFC), created in 2021 to push for law change, to support foster carers and the vulnerable children they care for, welcomed the decision at East London Employment Tribunal.

It now plans to take the fight for full employment rights to the Supreme Court.

General secretary Robin Findlay said: “We are very pleased with the judgment the tribunal have given. It has opened the door to whistleblowers and discrimination claims and we are pleased the judge has written the judgment in such a way that all the evidence is there for it to proceed to the Supreme Court to overturn a historic case called ‘W v Essex’ which currently blocks foster carers getting full workers’ status.”

The 1998 W v Essex County Council case ruled that while foster carers have some features of being employed, such as payment of allowances and expenses, they are not in an employment contract.

Tribunal judge John Crosfill said he was bound by this case but noted comments by senior Court of Appeal judge David Bean at a previous hearing who said the reasoning behind it was “puzzling” and should be revisited by the Supreme Court.

Findlay added the tribunal win means other discrimination claims against local authorities could now be heard.

“For many years, foster carers who look after vulnerable children, many who are traumatised, have themselves been vulnerable and open to incorrect allegations by their fostering providers, based on opinions and misconceptions rather than facts and evidence. The current system is geared up to always use the foster carer as the scapegoat! Things are now changing and those fostering providers who do not treat their foster carers fairly and according the law can now be brought to task. We have many members who are now in a position to commence tribunal cases against their fostering provider and this will improve the way children in care are looked after.”

One Claimant, Pauline Oni said: “Before you couldn’t do anything. If you felt you were being treated unfairly, you would just have to toe the line. If you complained the fostering service could make life difficult for you and the situation became untenable. I think this ruling will improve recruitment and retention rates among foster carers knowing they have that added protection.”

Jacqueline McGuigan, of TMP Solicitors, who represented them, said: “This judgment is a great day for foster carers in the UK.

For almost 30 years, foster carers have not had the right to bring any claims in an employment tribunal. As a result of this judgment, they can pursue discrimination and whistleblowing claims, which are the most serious types of claims you can bring in an employment tribunal.

Overturning W v Essex in the Supreme Court will not be easy, but this judgment has paved the way for the possibility of that happening. The employment tribunal said it would have found foster carers to be workers now if there was no W v Essex. This is a huge incentive to try to topple this outdated Court of Appeal case.”

ENDS

Notes to Editors

Robin Findlay - National Union of Professional Foster Carers - enquiries@nupfc.com

www.nupfc.com/join

Background

Under UK employment law, there are three categories of people in employment: employees, who have full employment rights; ‘workers’ (also referred to as limb (b) status) who have some rights such as paid holiday; and independent contractors with no employment rights.

As independent workers, foster carers get paid a weekly allowance rather than a salary and enjoy tax benefits. They are not entitled to minimum wage, sick pay, paid holiday or employer pension payments.

However, recent cases won by people in the so-called ‘gig’ economy – predominantly drivers – show a trend to extending employment rights.

In 2021, the Supreme Court ruled that Uber drivers should be treated as ‘workers’ rather than self-employed independent contractors.

A 2018 case also established that plumber Gary Smith was not an independent contractor, as stated in his contract with London firm Pimlico Plumbers, but in fact had ‘worker’ status and therefore the right to pursue a discrimination claim as well as unpaid holiday.

Findlay, who won a High court battle for foster carers to be represented by a trade union, claims foster carers should be given a choice over their employment status.

“I would think most of them would take the limb (b) option where they can be self-employed but have some rights. But give them the option – currently they don’t have the option,” he said.

“Foster carers look after some of the most vulnerable children so society should look after foster carers too. Currently they feel like they are dispensable. They can just be dumped.”

Nearly 70,000 children live with over 53,000 foster families across the UK, almost three-quarters of the total amount of children looked after away from home, according to The Fostering Network.

It estimates 6,500 more foster care placements are needed in England alone, while Barnardo’s recently warned of a “crisis”, with retiring foster carers not being replaced.

The government is investing £15 million to boost the number of foster carers and last year increased the national minimum allowance for foster carers in England by 3.55 per cent. However, The Fostering Network claims the increase fails to compensate for years of underfunding and increased cost of living.

Findlay added: “Giving foster carers worker status benefits everybody involved It will save the government a lot of money because it will make fostering in a foster carers home more attractive and that is a lot cheaper than putting children into children’s homes which as we know can cost in excess of £5,000 per week per child. It will also give children in the care system a stable home with proper values to be brought up in, help to stop them being moved on a whim and give them a better chance in life. We welcome Local authorities and agencies to work with the NUPFC to ensure best practice”

The National Union of Professional Foster Carers – www.nupfc.com

Foster carers can join at: www.nupfc.com/join

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