Foster Parents are not ‘workers’

The Advocate General of the ECJ said that foster parents are not workers and are therefore do not have rights under the Working Time Directive (to rest breaks and holidays).   Updated January 2019.foster parents

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.  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, is to be heard by the EAT in September 2018 and Anderson v Hampshire County Council, is awaiting a date.

The Anderson case is being supported by the Independent Workers’ Union of Great Britain (IWGB) which, last year, successfully backed two foster carers, Mr and Mrs Johnstone, in arguing that they were employees 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’ 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 Anderson case is an employment status and unpaid holiday claim against the council.

 

 

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