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John Bowers QC writes about the employment status of foster carers

07.01.21

Foster carers; a myriad of decisions

The EAT in Scotland in Glasgow CC v Johnstone [2020] IRLR 908 considered a particular type of foster carer and found that they were employees. This decision reflects a divergence from the long-established position in England (where there are several further cases awaiting judgment) but can be explained on the rather specific facts of the case.

Previous UK foster carers cases

The previous UK case law on “mainstream” foster carers has been consistent

over many years that they are neither employees nor workers although primarily this is on the basis that the relationship was entirely regulated by statute. The absence of a contractual relationship between the foster carer and the local authority was emphasised by the Court of Appeal in W v Essex County Council [1998] 3 All ER 111 [1998] 3 WLR 534. Stuart Smith LJ said “A contract is essentially an agreement that is freely entered into on terms that are freely negotiated. If there is a statutory obligation to enter into a form of agreement the terms of which are laid down, at any rate in their most important respects, there is no contract: see Norweb Plc v. Dixon [1995] 1 W.L.R. 636, 643F.” (para 50)[1].

This was followed by the Court of Appeal in Rowlands v City of Bradford MDC [1999] EWCA Civ 1116 (the Judgment also being given by Stuart Smith LJ). Similarly, in Bullock v Norfolk CC EAT 230/10 the EAT held that the relationship between the Council and the foster carer was not at all contractual. The ET had decided that “the terms but not necessarily the detailed content of every clause in the FCA is dictated by the 2002 Regulations and the parties are not free to draw up an agreement which does not include all these terms”. It was a relationship governed “simply and solely by the provisions of the statutory scheme” and thus was not contractual at all, let alone a contract of or for service.

Johnstone: ET

In Johnstone the claimants brought whistleblowing claims and said they were employees. The Council went only so far as to accept that they were workers but rejected the suggestion that the foster care agreement rendered them employees. The system adopted by Glasgow was described as MTFC, Multi-Dimensional Treatment Foster Care Team, and this was based on the so called the “Oregon model” of Foster Care. They were engaged under a joint venture between the council and the NHS called Connex MTFC in a ground breaking form of foster carer agreement. Reg 24 of the Looked After Children (Scotland) Regs under which they operated required local authorities to enter into written agreements with foster carers regarding obligations.

These facts found by the Tribunal are most material to the decision and distinguish it from most other cases:

  1. The Claimants received a £32000 per annum payment;
  2. Mrs Johnstone had to give up her job and commit to foster caring full time;
  3. The foster carers were entitled to 28 days paid holiday; otherwise it is viewed as a full-time commitment;
  4. The Carers are expected to ring in their Parental Daily Report on a daily basis which is a key and distinctive part of the care model;
  5. The Carers are required to attend business meeting every 3 months;
  6. There were some matters in the agreement with the carers which are not in the regulations.

These (amongst other) facts caused the ET Judge to comment at Para 55 that “there are clear differences between the situation in the present case and the situation set out in the previous case law”.

In Para 65 the tribunal found in favour of the claimants because “The degree of day to day control through the parental daily report and the weekly meetings was extremely significant and the claimants had no real discretion as to how they carried out the work they were to undertake…. The other provisions of the contract were entirely consistent with this being a contract of service”.

Johnstone: EAT

The EAT would not overturn the ET’s judgment. They found the “written agreement” referred to in the Regulations was a contractual document. The obligations went beyond those derived from statute law. In  particular the financial arrangements on remuneration and control were typical of a contract of employment. Besides the full-time employment aspect, they were required to attend training on a regular basis. The key difference from normal agreements in this field was that the carer could not take another paid employment, and the MTFC carer received a fee of about £30000 per annum whether or not a child was placed with them.

Although the agreement itself said they were self employed and there were some terms derived from statute, the EAT would not interfere with the decision of the ET. The EAT did not accept a need to abide by the English cases.

Duncan

This case may be contrasted with another Scottish ET case Duncan v Fife Council Case No 4100442/17 which happened to be decided by the same judge. The Judge found that Duncan was not a worker and clearly distinguished the case from that of the Johnstones (at Para 54) mainly because “the Johnstones were specifically part of a therapeutic team delivering an extremely structured care regime which was considerably different from the usual fostering model”. Here, on the contrary there were “minimal changes from the usual system”. He continued (para 58) “In this case as in Bullock there are really no aspects of the arrangement between the parties which exist outside the statutory framework”. He emphasised at para 60 however that “Every case is fact specific”.

Sindicatul

It is curious that the recent decision of the CJEU in Sindicatul Familia Constanta v Directia Generala de Asistenta Sociala si Protectia Copilului Constantathe 2018/926 was not cited in Johnstone (although nothing in Johnstone was an EU claim). In Sindicatul the CJEU considered the application of working time provisions to foster carers in Romania. The respondent Director General was a public institution whose purpose is to co ordinate the activities of social assistance and protection of the family and the rights of minors at the level of provinces of Bucharest. The foster carers concluded a special employment contract with the Director General and a placement agreement for each child.

This provided for continuity of work including during weekly rest days, public holidays and non-working days with the working hours being determined on the basis of the needs of the child. This includes periods of annual leave. The referring Bucharest Court mentioned that foster parents share the home with the child placed with them and thus remain at the disposal of the employer to provide a service to that child even during periods when they do not perform work as a foster parent. The Bucharest court said “The activities of a foster parent cannot be planned with precision but must be organised in a very general way”.

The CJEU considered in turn whether the foster carers were workers and whether this fell within the exception in the Working Time Directive. The court emphasised that the concept of worker has an autonomous meaning specific to EU law which is separate to the law of Member States.

The essential feature of the EU concept is that for a certain period of time a person performs services under the direction of another person in return for which s/he receives remuneration (as per Union syndicale Solidaire Isere C-428/). Here there was the continuity of service and the foster carers had to be approved. The specialist service for the protection of minors had to supervise their professional activity and to assess the development of the child placed with them. It was not called into question because they had discretion normally as to their conduct.

Trade union context

Another rather unusual context in which the issue arose was In National Union of Professional Foster Carers (NUPFC) v Certification Officer [2019] IRLR 860 (presently under appeal).  the NUPFC was formed to provide advice and advocacy to foster carers and to bargain collectively regarding their pay and conditions. To be registered the union had to consist of workers. The Certification Officer did not think this was established in this case and the EAT upheld that view finding that the relationship between foster carers and foster care providers or local authorities was one that was strictly governed by a complex statutory framework. That tended to militate against a conclusion that there was the degree of freedom which one might have expected if the relationship were contractual. The special nature of the foster care relationship sat uneasily with the concept of employment and the system of individual employment protection.

Conclusion

It is likely that the Johnstone  case will be confined to its own special facts and that the role of foster carer will be seen as one governed more by statute than by contract but the tectonic plates may be slowly shifting.

 

JOHN BOWERS QC

Littleton Chambers

16 12 20

 

[1] This effectively followed the judgment in S v Walsall MBC [1985] 1 WLR 1150 where Oliver LJ said the statute and regulations “form a statutory code and they underline the fact that the whole of this area is covered by a complicated and detailed statutory scheme” (see also Sharpe v Worcester Diocesan Board of Finance [2015] ICR 1241 on priests esp paras 90 – 94).

 

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