Yes, held the Employment Tribunal in Oni and others v London Borough of Waltham Forest and others ET/3204635/2021 (21 January 2025) (EJ Crosfill).
An employment tribunal has held that foster carers can bring whistleblowing and discrimination claims. To deprive them of the right to do so would be in breach of Articles 10 and 8 respectively of the European Convention on Human Rights.
This decision will have wide-ranging implications. We understand that it is likely to be appealed.
Despite recent Supreme Court decisions on employment status, in particular Uber BV v Aslam [2018] IRLR 97, the tribunal considered itself bound by the Court of Appeal’s decision in W v Essex County Council [1998] 3 WLR 534 (CA), that foster carers do not have contracts with local authorities as their relationship is governed by statute. As a result, on a domestic construction of section 230 of the Employment Rights Act 1996 (ERA 1996), regulation 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (SI 1994/1623), regulation 2 of the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998), section 54 of the National Minimum Wage Act 1998 and section 83 of the Equality Act 2010 (EqA 2010), the tribunal did not have jurisdiction to hear claims brought by the Claimants in reliance on these provisions. Had their relationship with their local authorities been contractual, the tribunal would have found that the Claimants were workers, but not employees.
The tribunal held that the principles of EU Law did not require it to interpret either the EqA 2010 or the WTR 1998 in a way that would permit the Claimants to pursue claims despite the absence of a contractual relationship. Rowlands v City of Bradford Metropolitan District Council [1999] EWCA Civ 1116 and NUPFC v Certification Officer [2021] ICR 1397 remain binding authority for the proposition that working pursuant to a contract is a precondition of bringing claims under Part 5 of the EqA 2010. Following the ECJ’s decision in Sindicatul Familia Constanţa, it was not arguable that the rights afforded by the Working Time Directive 2003 in respect of rest (other than annual leave) were compatible with the “24/7/365” nature of a foster carer’s role.
However, excluding foster carers from pursing whistleblowing claims under sections 47B and 48 of the ERA 1996 and discrimination claims under Part 5 of the EqA 2010 amounts to an unjustified interference with their rights under, respectively, Articles 10 and 8 of the European Convention of Human Rights read with Article 14. Therefore, in accordance with section 3 of the Human Rights Act 1998, sections 230 and 43K of the ERA 1996 and section 83 of the EqA 2010 can be interpreted to allow pursuit of such claims.
The three Claimants were represented by Rachel Crasnow KC and Chris Milsom of Cloisters.
