But proving they have an employment relationship could be difficult
A group of foster carers recently voted to organise themselves into a union by launching their own branch of the Independent Workers Union of Great Britain (IWGB).
The union’s general secretary Jason Moyer-Lee said the aim was to try to give foster carers “better working rights, whether (by being) recognised as workers or through new legislation”, and that as professionals taking care of some of the most vulnerable people in society, the “terms and conditions and pay they receive should reflect the importance of the work they do.”
It is easy to see why foster carers would want to be recognised in this way, and one way of achieving that is by obtaining worker status. On the other hand, one of the key drivers for wanting to be a foster carer is often not financial, but the desire to have a positive impact on children’s lives. No doubt, local authorities would argue that foster carers knew what they were getting into when they signed up.
Clearly, the financial implications of foster carers obtaining worker status would be significant. They are currently classed as self-employed. They receive remuneration and tax benefits, but the amount they receive is unlikely to comply with the national minimum wage regulations, since time spent with children at home, overnight and at weekends would probably count as working time, as the foster carer’s presence is likely to be required for regulatory or health and safety reasons.
If they were recognised as workers, they would need to be added to payroll and receive the national living wage, which is currently £7.20 for those 25 or over. They would also be entitled to paid holidays and, depending on the circumstances, may also need to be auto-enrolled into a pension scheme and, if their organisation was a local authority, it would probably have to offer membership of the local government pension scheme. Local authority budgets are already strained and councils may find it difficult to obtain the additional funds required.
Although workers do not have the protection of the unfair dismissal legislation, they do have the right to be accompanied at disciplinary or grievance hearings. It is also possible that the IWGB could try to obtain union recognition in relation to foster carers, since the statutory recognition mechanism applies to workers, as well as employees.
But whether a foster carer is a ‘worker’ is a matter of law, and the legal test is complex. The sorts of things that are assessed are: the degree of control exercised by the organisation; the exclusivity of the arrangement; its duration; and the method of payment. However, the bottom line is that there needs to be a contract between the organisation and the worker. If there is no contract, the ‘worker’ test cannot be met.
In a case concerning a foster carer, W v Essex County Council [2000], the Court of Appeal said that since legislation prescribes the form a foster care agreement must take, it cannot be a contract, even though some of the hallmarks of a ‘worker’ relationship may be in place (for example, the high degree of control imposed on foster carers by local authorities).
So how will the IWGB achieve ‘worker’ status for foster carers? The union believes there are two options: a test case or legislation. It is already working with a barrister on the possibility of getting a case to the Supreme Court (a ruling would have to come from a court at this level in over to overturn the decision in the W case). With the government’s current preoccupation with Brexit, it’s difficult to see the other option – a change to legislation – happening any time soon.
Mark Walker is a senior associate at CMS Cameron McKenna LLP
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