The UK’s 73,500 foster carers do not have employee or worker status, as generally there is no official contract of employment. This means they are not entitled to employee rights such as sick pay, holiday pay, or the national minimum wage – or whistleblowing protection. Foster carers wishing to raise concerns about poor practice, and child protection more generally, may be vulnerable to victimisation for whistleblowing. They can have children taken out of their care and in extreme cases lose their livelihoods if made the subject of false and malicious allegations because they blew the whistle. There have been many debates in Parliament seeking to give stronger rights to this group of workers, and two recent cases have explored their legal status further.
Legal victory for foster carers Jimmy and Christine Johnson paves way for employment rights for foster parents
In 2020 the EAT upheld an earlier ET decision that two foster carers, Jimmy and Christine Johnstone were employees of Glasgow City Council. Generally the argument is that foster carers are purely engaged under a statutory relationship with the local authority. However, here the relationship was held to be akin to an employment relationship.
Foster carers have rights to Freedom of Association
In April 2021, a landmark Court of Appeal ruling -The National Union of Professional Foster Carers vs the Certification Officer – held that foster carers were in an employment relationship for the purpose of Article 11 (freedom of association) under the European Convention on Human Rights (ECHR). While this means foster carers have rights to join a union, this case does not mean that other employment rights are available to foster carers. However, it may be of significance if other ECHR rights are engaged, including freedom of expression.
Protect welcomes these decisions, but recognises they do not automatically lead to wider employment protections for foster carers. The rights conferred by PIDA already go beyond other legal definitions of worker as whistleblowing protections should encourage public interest concerns to be raised by a wide range of people in the workplace.
The burden of extending whistleblowing protection should not fall to individuals to continually bring test cases in the Employment Tribunal. Protect’s bill would extend whistleblowing protection to fosters carers to encourage them to speak up about wrongdoing.
Whistleblowing affects us all. Protect’s campaign Let’s Fix UK Whistleblowing Law needs your support. Click the banner below to write to your local MP.