Foster Carers can bring Discrimination and Whistleblowing claims: Oni and Others -v- London Borough of Waltham Forest and others [3204635/2021, 2300852/2022 and 3302687/2022]

In order to pursue a claim for whistleblowing, a person needs to be able to show that they are an employee or a worker. Following the Court of Appeal’s Judgment in W v Essex County Council [1999] Fam 90, foster carers have been unable to complain of their treatment before an employment tribunal due to it being held that the relationship between local authorities and foster carers is not founded in any contract but is a product of the statutory regime. They have therefore been classified as neither workers nor employees.

In order to pursue a claim for whistleblowing, a person needs to be able to show that they are an employee or a worker. Following the Court of Appeal’s Judgment in W v Essex County Council [1999] Fam 90, foster carers have been unable to complain of their treatment before an employment tribunal due to it being held that the relationship between local authorities and foster carers is not founded in any contract but is a product of the statutory regime. They have therefore been classified as neither workers nor employees.

Background

Ms Oni, Ms Dawkins and Ms Reid were foster carers, providing care for children on behalf of local authorities. All three of them presented claims in the employment tribunal against the local authorities they provided their services to relating to the treatment they received, including discrimination and whistleblowing claims.

Intervening in the cases, the Secretary of State claimed that it was not in the best interest of children to allow foster carers to have employee status

Employment Tribunal Judgment

A hearing was listed to determine whether the foster carers had standing as either an employee or a worker to pursue a claim for whistleblowing and discrimination.

At the hearing Employment Judge Crosfill commented that foster carers can only provide their services to one fostering service at a time, that they are unable to market their services, and they are unable to negotiate their rates of remuneration to any significant degree, and therefore “but for the absence of a contract, I would have concluded that the Claimants were workers under domestic legislation.” However, unfortunately the tribunal’s hands are still tied by the Court of Appeal’s decision in W v Essex County Council [1999] Fam and on that basis, they would be excluded from pursuing claims for whistleblowing under sections 47B and 48 of the Employment Rights Act 1996 or for discrimination under the Equality Act 2010 (“EA 2010”)

However, being a local authority and the Tribunal’s obligations in ensuring that convention rights are upheld, Employment Judge Crossfield found that it was possible for the foster carers to seek protection under human rights law in respect of whistleblowing under Article 10 of the European Convention of Human Rights (the right to free speech).

Employment Judge Crossfield also found that it was possible for foster carers to pursue discrimination claims under Article 8 (the right to respect for your private and family life). It was stated that although the mechanism of Article 8 provides no general right to employment or protection from dismissal, that does not mean that it cannot be engaged in the workplace or from decisions taken about work. It was therefore concluded that where a foster carer who accommodates, or might accommodate children within the household raises a claim that they have been subjected to an act or omission that contravenes the EA 2010 then such a claim falls within the ‘ambit’ of Article 8.

The Claimants were therefore able to proceed with their discrimination and whistleblowing claims.

Practical Implications

This Judgment is likely to be appealed with the aim of overturning the outdated but binding decision in W v Essex County Council [1999] Fam 90 that foster carers cannot be classified as employees nor workers.

In the meantime, the Judgment means that foster carers are afforded protection from less favourable and detrimental treatment by the local authorities that they provide their services to, and employment tribunals will have jurisdiction to hear their discrimination and whistleblowing claims.

For further information or to discuss a potential employment law or discrimination claim, please contact our specialist employment solicitors on 0207 3950 5234 or info@rllaw.co.uk. We are ranked as a ‘Leading Firm’ in the Legal 500 and Chambers and Partners independent guides to the UK Legal Profession.

28 February 2025