Foster carers permitted to bring whistleblowing and discrimination claims
An employment tribunal has ruled that foster carers can pursue whistleblowing and discrimination claims despite lacking a contractual relationship with local authorities.
How do whistleblowing and discrimination protections apply to foster carers?
Whistleblowing laws protect individuals who report wrongdoing at work, provided their disclosure is a ‘qualifying disclosure’ and they reasonably believe that making the disclosure is in the public interest. If whistleblowers are dismissed or suffer a detriment as a result, they are legally protected.
Discrimination protections under the Equality Act 2010 ensure individuals are not treated unfairly due to protected characteristics such as race, gender, or disability.
Both frameworks typically apply to workers and employees.
Recent legal challenges are expanding these protections to non-traditional work arrangements, reflecting a broader push for inclusivity and fairness. In the case of Oni v London Borough of Waltham Forest, foster carers challenged the long-held view that their relationship with local authorities, governed by statute rather than contract, excludes them from all employment law protections.
The Tribunal's decision
In Oni, the claimants were foster carers for various local authorities. They brought claims of whistleblowing and discrimination against the local authorities. The local authorities argued that the claims should be struck out, relying on existing case law, which establishes that foster carers do not have a contractual relationship with local authorities. The tribunal agreed that the relationship between foster carers and local authorities is governed by statute, not by contract. This meant that, under a domestic interpretation of employment law, the claimants could not be classified as workers or employees.
However, the tribunal considered whether human rights principles required a different approach. It found that denying foster carers whistleblowing and discrimination protection would amount to an unjustified interference with their human rights under Articles 10 (freedom of expression) and 8 (right to private and family life), read with Article 14 (prohibition of discrimination). As a result, the tribunal applied human rights principles to interpret employment protections in a way that allowed the claims to proceed, despite the absence of a contractual relationship. To exclude foster carers from whistleblowing and discrimination protections would be incompatible with their human rights.
By applying human rights principles, the tribunal was able to interpret UK employment legislation in a way that allowed these claims to be heard. While this decision does not change the contractual status of foster carers, it provides a legal basis for them to challenge discrimination and unfair treatment through whistleblowing claims.
Other key findings
The tribunal was bound by precedent to find that foster carers do not have contracts with local authorities and are therefore not workers or employees under UK employment law. Despite arguments to the contrary, it concluded that established case law confirms that the relationship between foster carers and local authorities is governed by statute rather than contract.
The tribunal also found that EU law did not require it to interpret UK legislation in a way that would allow foster carers to bring claims under the Working Time Regulations 1998 or the National Minimum Wage Act 1998. The nature of fostering arrangements, which involve continuous care responsibilities, was considered incompatible with working time protections under existing legislation.
Learning points for employers
While this decision does not change the employment status of foster carers, it creates a potential pathway for whistleblowing and discrimination claims based on human rights arguments.
It is currently unclear whether this decision will be appealed, but if upheld, it could have significant implications for how foster carers are treated under employment law.