In January 2025, an Employment Tribunal decided that foster carers, despite being neither ‘workers’ nor ‘employees’, could bring claims for whistleblowing and discrimination.
The three Claimants were foster carers seeking to bring whistleblowing and discrimination claims against the local authorities (the Respondents), who they provided foster caring services on behalf of. The Respondents relied on the Court of Appeal’s decision in W v Essex County Council (see below) to argue that the Claimants had no standing and therefore, their claims should be struck out.
The W v Essex Case
In 1998, the Court of Appeal ruled that foster carers do not work under a contract and their relationship with local authorities was governed by statute. The implication was that foster carers are ‘independent contractors’ being neither workers nor employees.
Foster carers therefore do not benefit from a range of entitlements including sick pay, holiday pay and pension and are not governed by the Working Time Regulations 1998 or the National Minimum Wage Act 1998. Significantly, they do not have employment rights to assert before an Employment Tribunal.
The Claimants’ case
In attempting to establish standing to bring their case, the Claimants relied on their rights under the European Convention on Human Rights (the ECHR), which was incorporated into UK law by the Human Rights Act 1998 (the HRA). Specifically, they relied on:
- Article 8 – right to respect for private and family life;
- Article 10 – freedom of expression; and
- Article 14 – prohibition of discrimination (i.e., that the rights under the ECHR should be applied without discrimination).
The presiding judge, Judge Crosfill, considered this case in light of recent Supreme Court decisions on employment status, including most notably, the Uber v Aslam case. Ultimately however, the Tribunal was bound by the W v Essex decision which prevented it from making a ruling that foster carers specifically, were workers. Judge Crosfill noted bar this authority, he would have made a finding that foster carers were workers given several elements of the relationship they had with local authorities met the test of ‘worker’ (e.g., control, a lack of substitution, exclusivity of work to one fostering service at a time).
However, the HRA requires domestic legislation to “be read and given effect in a way which is compatible with Convention rights”. Relying on this, Judge Crosfill agreed with the Claimants’ argument – preventing the Claimants from pursuing their whistleblowing and discrimination claims amounted to an unjustified interference with their human rights. Nevertheless, Judge Crosfill found that a similar unjustified interference could not be found in the lack of protection foster carers had under the Working Time Regulations 1998 or National Minimum Wage Act 1998.
The outcome is that the Tribunal did not have jurisdiction to hear the claims brought by the Claimants, W v Essex is still binding, and the position remains that foster carers are not workers nor employees. Now however, a new path has been carved via human rights law allowing foster carers to step into the employment sphere despite a lack of contractual relationship between them and local authorities.