Amongst all the noise about the Supreme Court’s decision to quash Employment Tribunal fees, another recent decision, made at the opposite end of the judicial hierarchy, has rather slipped under the radar. Given that you’ll have seen endless opinions on UNISON v Lord Chancellor I thought it might be more interesting to share some thoughts on Johnstone v Glasgow City Council.
In a nutshell, this was a preliminary hearing in which the Glasgow Employment Tribunal accepted that James and Christine Johnstone, who are both foster carers, were employees of the council. This decision (unless overturned on appeal) will allow them to pursue claims of alleged unlawful deductions from wages and detriment arising from making protected disclosures.
The case is significant for foster carers, local authorities and fostering agencies, because it goes against previous authority to the opposite effect. (It should, however, be noted that these carers were working on a specific, intensive, fostering programme and the judge was reportedly careful to state that the decision was not indicative of the status of ‘mainstream’ foster carers).
The judgment itself isn’t yet available, so it’s difficult to comment in detail, but it is worth noting that the claim was supported by the Independent Workers Unions of Great Britain, a relatively new union which has also been involved in many of the recent gig economy cases. This case could be seen as being in line with a recent tend of high-profile employment status decisions going in favour of the individual.
That said, I’m not sure that the arguments that apply to couriers, taxi-drivers and other on/off gig economy participants are that relevant to foster carers. Indeed, it is hard to imagine a job which gives less opportunity to switch off. I wonder if the previous resistance to categorising such carers as employees had more to do with the idea that it was a vocation, and that there was something distasteful about reducing the care of children in a family setting to a mere wage/work bargain. Such arguments have been commonplace in the (surprisingly large number of) cases brought by clergy and celebrants of various faiths to try to show employment status over the last couple of decades.
Whilst (obviously) as an employment lawyer I find every Tribunal pronouncement fascinating (!) I have a particular interest here due to personal connections. I don’t think anyone would dispute that there has been a huge professionalisation of the role of foster carers in recent years. With the reduction in institutionalised child care, foster carers are at the front line in working with many of the most troubled children and young people in society. They might need to be (and often are) medical experts, educational experts, therapists and loving parents all rolled into one. Their work is closely controlled, both as to how they go about it and how well they are performing. I don’t imagine that any judge would find it difficult to see the characteristics of employment in the modern role. To then exclude them on other grounds (whether practical or sentimental) would have been highly questionable.
I doubt that this change of status will make a great deal of practical difference for many foster carers – through legislative change or sensible interpretation the law will accommodate the unique pay and leave arrangements of the role. Local authorities may find it harder to dispense with their services but I would argue that that, along with whistleblower protection, is likely to be a good thing for transparency and, ultimately, for the well-being of children in state care. Yes, there will be bad foster carers who should be dismissed, but there will equally be bad social workers and bad social work managers. Foster carers having a voice and a status will make it easier for those individuals to be challenged.
I often feel with employment law that the good is not seen in the individual cases, which can often be time and resource-draining, frustrating and disappointing from the perspective of both employer and employee (often in the same case!). The individual cases matter because they are part of an over-arching framework of protections. The good is seen in the fact that, as a result of that framework, most employers behave decently, most employees are not exploited and most people (despite the headlines) will never find themselves in an Employment Tribunal. The discredited fees regime took away a chunk of that framework – the protections were there but they were inaccessible to many who needed them and employers were increasingly willing to gamble on that being the case. UNISON v Lord Chancellor is to be applauded because it strengthens the framework. By bringing (at least some) foster carers within the scope of employment protection Johnstone v Glasgow City Council, in a different way, on a smaller scale, also strengthens that framework and, in my view, it too should be applauded.