Should Foster Carers be regarded as ‘Workers’?

Foster carer, Sarah Anderson, has brought a claim against Hampshire County Council for unpaid holiday. She believes she is in an “employment relationship” with the council (as defined by EU law) which means she is entitled to four weeks of paid leave under the EU Working Time Directive.

Carers tend to work for local authorities, charities or private companies that act on behalf of councils. They receive a weekly allowance ranging from £150 to £500 per child, to cover the costs of the children they care for.

In Sarah’s case, she has been a foster carer for 10 years (being engaged by Hampshire County Council for four of these years). During that time, she and her husband, Timothy Tallent, have provided a home for 10 children. She says “I can be on call 24 hours a day – evenings, weekends, Christmas, bank holidays – and all we are afforded is two weeks’ respite a year.” She adds that “Our lack of rights extends beyond any proper holiday entitlement – we have no employment rights whatsoever and we can lose our jobs on a whim overnight.”

As it stands, the council say the law is clear – foster carers are not ‘workers’. This means they do not have rights such as holiday pay or discrimination protection. The English courts have ruled that the written agreement between foster carers and local authorities is not a legal contract, which is a necessary requirement for someone to be classed as either a worker or employee. The Court of Appeal agrees as the terms in such agreements are set out in law and are not freely entered into and negotiated by the parties.

Interestingly, the Glasgow Employment Tribunal found some specialised fostering agreements could be different from those the Court of Appeal was considering, and deemed the carers concerned “employees”.

If Sarah is successful, her claim could open the doors for around 55,000 fostering households in the UK.