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Tribunal holds foster care agreement a contract of employment

3 August 2017

Foster carers have been classed as council employees in a ruling by an employment tribunal, enabling the carers to claim compensation when no children were placed with them for a year.

James and Christine Johnstone, who have fostered five different children, brought a claim against Glasgow City Council for unlawful deduction to their wages. They had a signed agreement with the council, – but previously this had not been regarded as an employment contract. The Johnstones needed to be regarded as council employees in order to establish their claim.

They were supported in their case by the Independent Workers Union of Great Britain, and represented by Robert Holland of legal firm Balfour+Manson. Mr Holland explained: "The tribunal found there was a de facto contract between the Johnstones and the council and that the Johnstones are therefore employees.

“It also found there were different facts from a similar English case, and that the Scots law of contract was relevant – so the Johnstones' claim was not restrained by the English rulings.

“The ruling noted that the council was enforcing contractual obligations by their 'no work, no pay’ policy – and that the level of control and mutual obligations meant they were clearly employees."

Mr Holland stressed that the ruling applied at this stage only to a distinct category of foster carers, but added: “This is obviously a significant decision reflecting the valuable service that foster carers deliver. My clients carry out a very important job in society, and the tribunal has decided they should receive the same employment rights as others in full time work.”

The case will now go forward to a final hearing, specifically on the wages issue.

Mr Johnstone pointed out: "We are paid a fee, but with most foster carers it is just a fee and not a salary. They don't have holidays, holiday pay or anything at all, and this needs to be looked at.

"You are asking people to come in and look after society's vulnerable young people and they don't have any rights. Right across the country there are foster carers getting abused, removed for complaining, for anything. And this affects, most importantly, the young people you are trying to work with. "

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