Hampshire foster carer in workers rights battle

Legal case to claim for workers rights

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Legal claim launched in argument for workers rights.

Sarah Anderson works for Hampshire County Council but currently does not have the rights of a “worker”, such as holiday pay and discrimination protection.

Sarah will fight to have foster carers reclassified to give them the same rights as ”workers” in a landmark case.

Hampshire county council have said the law is clear that carers are not ”workers”.

Ms Anderson has been fostering for 10 years and been working with Hampshire County Council for four years.

During that time, she and her husband have provided a home for 10 children.

Ms Anderson said:

‘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,’

‘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.’

Ms Anderson, who chairs the foster care workers branch of the Independent Workers Union of Great Britain (IWGB), hopes by issuing a claim to an employment tribunal against the council, the situation will change for all in a similar situation.

‘We fear being unwell, either physically or mentally, as this can also easily lead to us losing our jobs,’ she added.

‘Pay can be slashed and we are unable to do a thing about it. We can be, and are, discriminated against.’

Fostering in the UK

There are about 55,000 fostering households in the UK caring for some 64,000 children.

Carers tend to work for local authorities, or for charities or private companies that act on behalf of councils.

They receive a weekly allowance to cover the costs of the children they care for. The sum can range from £150 to £500 per child, depending on factors such as how demanding the child is.

Many carers, including Ms Anderson, also receive a fee to compensate them for their work.

They have not traditionally been regarded as “workers” – a legal category which derives in part from EU law, but which falls short of “employee”.

“Workers” are not entitled to the full set of employee rights, but receive some, such as paid holidays, the national minimum wage, pension contributions under auto-enrolment, and protection from discrimination.

Dr Jason Moyer-Lee, general secretary of the IWGB, said: ‘Foster care workers are not merely substitute parents. Many, like Sarah, are highly qualified, rigidly supervised, and paid for the work they do.’

‘Despite this, unfortunately, local authorities and private fostering agencies have not recognized these carers as having any employment rights.’

The law as it stands

Hampshire County Council said it was not aware of any case having been brought against it at this stage, but highlighted case law establishing that foster carers are not workers.

Tribunals and courts in England have ruled that the written agreement foster carers have with local authorities or fostering agencies 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 has also said that foster care agreements are not contracts because their terms are set out in law and not freely entered into and negotiated by the parties.

However, the Glasgow Employment Tribunal found that some specialized fostering agreements could be shown to be different from those the Court of Appeal was considering, and deemed the carers concerned “employees”.

Ms Anderson argues that she too has a contract. She also believes she is in an “employment relationship” with the council, as defined by EU law – meaning she is entitled to four weeks of paid leave under the EU Working Time Directive.

Dr Moyer-Lee added: “Sarah’s case is about establishing those rights so that foster care workers can have the time off and rest they need, and the pension contributions they deserve.”

 

Originally posted 2017-10-09 12:10:08.