In Sindicatul Familia Constanţa and others v Direcţia Generală de Asistenţă Socială şi Protecţia Copilului Constanţa, the Advocate General of the ECJ said that the relationship between foster parents and their ‘local’ authority was not one where the foster parents were subordinate to the authority (like a normal ‘worker’/employer relationship).
The Advocate General said it was impossible to reconcile the requirements of the Working Time Directive with the best interests of the children who the foster parents cared for, as it would be illogical if they regularly took time off when they were expected to care for the children (and would therefore need to be ‘replaced’ during their breaks by other foster carers).
The Advocate General’s opinion is non-binding, but the European Court of Justice (ECJ) normally follows their opinion, so in December 2018 the ECJ confirmed that foster parents are not workers for the purposes of the Working Time Directive.
UK case law
In Bullock v Norfolk County Council, the Court of Appeal held that there was no employment relationship between the parties (the Council and the foster parents) as there was no contractual relationship between them – the relationship was governed by statute not contract.
There are two further cases currently making their way through the tribunal system – Flisher v Kent County Council, was to be heard by the EAT in September 2018 but the decision was referred back to the Judge and has not yet been published as far as we can tell; and Anderson v Hampshire County Council, which was to be heard in December 2019 but the claimant withdrew the claim before the hearing.
The Anderson case is being supported by the Independent Workers’ Union of Great Britain (IWGB) which, in 2017, successfully backed two foster carers, Mr and Mrs Johnstone, in arguing that they were workers under Scottish law. However, the judge in that case stressed that the decision should not be taken as a finding about the status of ordinary foster carers because of the specific facts of the case; which included the fact they were ‘elite foster carers’ (working in a foster care programme called multidimensional treatment) where a contract was in place between the parties, and there was a significant degree of control and supervision exercised by the council over the day-to-day care provided to the children; the foster carers were not allowed to do any other work and had to make daily reports to the Council.
In August 2020 the Johnstone case went to the Scottish Employment Appeal Tribunal and the Judge, Lord Summers, agreed that they were workers and so were entitled the national minimum wage, sick pay and holiday pay. The judgement only relates to this particular kind of foster carer.
It is understood that Unions representing foster carers across the UK are planning to lodge further claims to see if this ruling should apply to the 40,000+ fostering households in the UK.