Oni and Others v London Borough of Waltham Forest and Others: a widening of worker status?
Image of Rachel Crasnow KC and Chris Milsom
Rachel Crasnow KC and Chris Milsom, instructed by TMP Solicitors LLP, acted for the Claimants in a landmark hearing in the Employment Tribunal ("ET") over the question of whether foster carers are “workers” and can bring claims in the employment tribunal.
The Claimants were or are foster carers providing care on behalf of local authorities. The Claimants presented claims before the Employment Tribunal, but the local authorities questioned the validity of their claims on the basis that the relationship between a foster carer and a local authority is not one that entitles the Claimants to seek redress before an employment tribunal. This argument is bolstered by the Court of Appeal authority of W v Essex County Council [1999] Fam90 which stated that foster carers did not work under a contract, but that their relationship with local authorities was instead governed by a statutory regime, including under the Children Act 1989 and Fostering Service (England) Regulations 2011.
The main issued explored in the judgment were [3.1-3.3]:
i) Whether in light of recent Supreme Court decisions including Uber BV v Aslam, W Essex County Council still prevents the Tribunal from holding that Claimants are able to access statutory rights;
ii) Whether under EU derived rights the existence of a contract is a precondition of exercising any such right;
iii) Whether excluding the Claimants from ECHR rights amounts to a breach of Article 14 of the Convention
On the first issue, the Claimants argued that the tribunal is required to read the Working Time Regulations 1998 and the EA 2010 to allow foster carers to assert rights to a paid holiday and complain under Part 5 of the EA 2010 about unlawful discrimination, harassment or victimisation [187]. If EU law required no contract between the employer and worker for the worker to point to an EU right, then without any changes caused by the UK’s withdrawal from the EU, the tribunal must interpret domestic legislation in a way that is consistent with that right [188]. EJ Crosfill accepted that the approach in Uber would permit a tribunal to depart from written agreements that exclude the existence of a contract or to place contractual liability on a party that is not the true party to the contractual agreement [155]. However, whilst Uber made it easier for the putative worker to push aside arrangements that appear to exclude the existence of a contract, it does not dispense with the requirement for a contract altogether. As such, EJ Crosfill concluded that on domestic construction of status, W v Essex remains the binding authority for the proposition that the Claimants do not work under a contract, disposing any claims of unfair dismissal.
However, absent this authority, the ET would have found that foster carers were indeed workers [186]. EJ Crosfill stated that foster carers can only provide services to one fostering service at a time; they cannot market their services; are unable to negotiate remuneration rates to a significant degree and work under the control of the fostering service. Therefore the local authorities are neither their clients nor their customers, and but for the absence of a contract, EJ Crosfill would have concluded that the Claimants are workers under domestic legislation and Section 83 EA 2010 [185-186].
On the second issue, EJ Crosfill applied the cases of Rowlands v City of Bradford Metropolitan District Council and NUFPC in stating that they remain binding authorities for the proposition that working pursuant to a contract is a precondition for claims under Part 5 of the EA 2010 [232.2]. In asking whether the Claimants were workers for the purposes of the WTD 2003, he applied the CJEU case of Constanţa and determined that the Claimants would have been regarded as workers under WTD 2003 [227]. However, he held that the ‘24/7/365 nature’ of foster carers’ work meant it was incompatible with the rest regime set out in the WTD 2003 [238]. It is for states to ensure there is sufficient protection for health and safety where rights under the WTD 2003 are excluded [239]. Ultimately, he held that reliance on EU law did not assist the Claimants in respect of their claims under WTR 1998 or the EA 2010 but agreed with the Claimants in many respects [273]. The ET remained bound by the conclusion that W v Essex barred the Claimants from bringing claims under Part 5 of the EA 2010 or any other claims where domestic legislation requires a contract as a precondition to access this right [197]. However, on EA 2010 claims, EJ Crosfill still held that as long as the Claimants are unable to bring themselves within Part 5 of the EA 2010, a foster carer could complain of discrimination under Section 29 of the EA 2010 [251].
On the third issue, EJ Crosfill found that it was possible under human rights law to construe protections for foster carers in respect of whistleblowing under Article 10 [283] and discrimination claims under Article 8 [299], but not minimum wage or working time regulations protections. In considering proportionality in respect of whistleblowing, EJ Crosfill found that extending rights to whistleblowing and discrimination protection was more likely to benefit children and was not satisfied the State had shown sufficient justification for excluding foster carers from such rights, finding a breach of Claimants’ rights under Articles 10 and 8 respectively [380; 385].
This judgment will have considerable implications on the rights and protections afforded to foster carers going forward, with the judgment indicating that the current lack of protection in respect of whistleblowing and discrimination to be in breach of Convention rights. With a likely appeal on the horizon, this judgment could be a key step in changing the nature of foster care rights and improving their status as workers.
You can read the judgment here.
Blog written by Cloisters’ Charlotte Tosti.
