After months of debate about the employment status of foster carers, the IWGB Foster Care Workers Union this week filed a case intended to demonstrate that foster carers should be classified as limb (b) workers with associated rights and protections.
The media coverage
Monday morning saw a flurry of media activity around a case being brought by the IWGB Foster Care Workers Union on behalf of its chair, Sarah Anderson, against Hampshire County Council, the local authority she fosters for. The union is arguing that the relationship between Anderson and the council means she should be considered a limb (b) worker and entitled to associated rights including holiday pay.
Anderson’s case was widely reported in the media and she appeared on a number of news outlets on Monday, including BBC Breakfast, Radio 4’s Today programme (1 hour 35) and the Huffington Post. “We live in a world fearful of allegations,” she told Radio 4 presenter John Humphrys. “We are controlled to the inch of our lives.” On the Victoria Derbyshire show (1 hour 20) she spoke about the agencies that a foster carer needs to work alongside and described the role as a “full-time” position. When challenged over the idea of a focus on money causing the wrong people to be attracted to fostering she responded, “Are we saying that promoting foster care as a more professionalised, skilled, specialist industry is going to get the wrong people in?” In the Victoria Derbyshire Show Anderson appeared alongside foster carer and columnist Martin Barrow who said, “I am not sure that worker status and employment rights really addresses the issues that face foster carers at the moment.” He suggested that being defined as such could jeopardise his independence and reduce his ability to advocate so strongly for the children in his care.
An even more robust discussion took place on Channel 4 news when Anderson went head to head with Sarah Jane Linton – a long-term foster carer for three boys and a board member for Who Cares Scotland. Linton argued that the real issue was the care system and the focus should be on children in care. “I am just a bit sad that we are talking about… the adults that choose to be foster parents but not the fact that you are eight times more likely to die under 25 in England if you are in foster care,” Linton said. Meanwhile ITV news discussed parallels with the recent successful employment tribunal case brought by two Glasgow foster carers and then took the debate out onto the streets of the southern region. It found a number of members of the public supportive of the idea that foster carers do a job and as such should get recognition as workers.
Fostering agency TACT zoomed in on the issue of paid holiday to make their point against the action. “In foster care we are replicating general family life. You don’t get paid holiday from your children in family life” it tweeted. “Children in foster care do not deserve to be told that they are something that adults need paid holiday from.” But foster carer Sandie Davies responded that the issue was “more complex than this”. “Caring for complex and traumatised children is tough.” she said. “I feel guilty [about holidays] but it enables me to continue.”
The legal argument
But TACT’s focus on holiday pay perhaps misses the broader issues: Anderson’s claim that she is entitled to worker status had to hang on a specific issue – and a claim for statutory holiday pay was perhaps easier to demonstrate in an employment tribunal than some of the more complex entitlements around worker status. Foster carers are classed as self-employed for tax purposes, but many argue that fostering fails HMRC’s self-employment test as foster carers cannot negotiate their rates, cannot foster for more than one agency at a time and cannot hire someone else to do the work.
However the union’s case is likely to hinge on the interpretation of the fostering agreement between Anderson and Hampshire County Council. All foster carers have to sign an agreement with their agency in line with Schedule 5 of the 2011 Fostering Regulations (in England and Wales). Fostering agencies say that this is a statutory requirement and therefore any agreement between an agency and a foster carer does not amount to an employment contract. However this summer an employment tribunal judge in Scotland disagreed. He ruled that the agreement between foster carers Jimmy and Christine Johnstone and Glasgow City Council went beyond the definition of a fostering agreement as defined by Scotland’s version of the Fostering Regulations (TWiF 3 August). As such it did constitute an employment contract and the judge ruled that they should therefore be classed as employees of the council – a decision that the council is currently appealing.
Anderson’s case will argue similarly that her agreement with Hampshire County Council goes above and beyond the requirements set out in the 2011 regulations and should be considered an employment contract. But unlike the Johnstones she is arguing for worker status rather than becoming an employee. Due to her experience and the nature of the children she fosters, Anderson is one of Hampshire’s better paid foster carers working on one of the higher echelons of a tiered fee payment system that operates to a greater or lesser extent across the whole of the local authority fostering landscape. And it is the higher earning carers who are more likely to have additional requirements placed on them (and set out in writing) which could be interpreted as going above and beyond the requirements set out in the minimum standards. To continue receiving the higher level fees carers face diverse additional expectations including supporting the recruitment of new foster carers, accepting all proposed placements unless there is an exceptional reason, and participating in an out of hours emergency fostering service provision.
The debate even reached human resources trade publication Personnel Today which quoted Hampshire County Council as saying they were unaware of the case being brought. Despite their apparent obliviousness to the legal action the council still put in a defence to it by quoting an employment tribunal ruling from 2011 (Bullock v Norfolk County Council) in which a Norfolk foster carer was denied union representation in her appeal against deregistration on the basis she was not a worker.
The further implications
Interestingly Personnel Today quoted Hampshire as referring to another, much sadder, case in its defence (NA v Nottinghamshire County Council), one that was brought by a care experienced young person claiming the council was liable for her suffering sexual and physical abuse at the hands of council foster carers. The claim was rejected, not least because the foster carers involved had no employment contract with the council. On the Victoria Derbyshire Show, BBC legal correspondent Clive Coleman referred briefly to the implications and “complex” ramifications that a successful test case would have for fostering agencies in terms of their responsibilities in this area; the Nottinghamshire ruling talks about further “scare resources” being allocated by local authorities to ensure that nothing went wrong in a placement, should the current relationship between fostering agency and foster carer be seen differently.
The foster carer
The IWGB Foster Care Workers Union is just over a year old and Anderson herself has only been in the role of chair since April. When This Week in Fostering caught up with her earlier this year, Anderson explained that she had been keen on the idea of a national body for foster carers for some time. She talked passionately about the isolation that many carers feel, particularly when faced with the stresses of allegations or feelings that they are not being supported by their fostering service. She talked about the need for “collective self-esteem” among carers and how she had tried to set up a professional foster carers association but never quite had the time and energy on top of daily fostering to get it off the ground. “And then the Union came along.” It was an obvious fit.
The union appears to have tapped into the moods and needs of many within fostering, although this week’s legal move has also been roundly criticised by many both within and beyond the fostering community. While not willing to divulge the numbers joining the IWGB Foster Care Workers Union, Anderson explained that over one period of four days alone 100 new members joined. Prior to launching the legal action Anderson’s focus had been on setting up a flagship local union group and supporting foster carers facing allegations. She hinted at a host of deeply concerning stories from carers who spoke out on behalf of the children in their care, with consequences for the way they are treated by fostering services. Some alleged to have had complaints manufactured against them, others said they had been simply overlooked when it came to placing children. All this had gone unchallenged because the status of foster carers means they have “previously been a disposable workforce”, Anderson explained.
The spotlight is on Anderson leading this campaign for change through legal action taken on behalf of fellow foster carers. She will no doubt face a tough journey in a debate that has already polarised many and has faced past and present criticism from powerful organisations including the Association of Directors of Children’s Services (TWiF 13 April). However there are other senior figures who believe that the sector must bear some collective responsibility for the situation that has arisen which has seen foster carers feel the need to resort to the courts to get the professional recognition and respect that they merit.
Photo by Aaron Burden / Unsplash