A judge has ruled that three foster carers should be allowed to bring discrimination and whistleblowing rights claims as workers.
If upheld, the judgment potentially opens the way for more than 57,000 foster carers in the UK to bring discrimination and whistleblowing claims at an employment tribunal. Judge Crosfill considered children in foster care could benefit if foster carers were able to speak up without fear of personal repercussions.
The Equality and Human Rights Commission supported the case, which was brought by foster carers Pauline Oni, Paulette Dawkins and Angela Reid.
Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said:
We supported this case to allow the tribunal the opportunity to clarify a significant grey area when it came to the rights of foster carers.
"Foster carers provide a key service, offering a loving home to children who need it most. They are rightly paid for the essential work they do.
"I hope that this judgment gives foster carers peace of mind that they are not alone if they are mistreated, and that there is now a potential route to a legal remedy.
Oni had raised whistleblowing concerns that her personal health and safety was endangered and complained that Waltham Forest stopped placing children in her care as a result. Dawkins had made complaints that Bromley Council was not meeting the needs of ethnic minority children, and this led to the termination of her approval as a foster carer. Reid alleged that Haringey Council removed children from her care due to age discrimination.
Historically foster carers have not been able to pursue discrimination or whistleblowing claims in the employment tribunal because they are not considered to be ‘workers’. A Court of Appeal case in 1998 (W v Essex) had ruled that there was no contractual relationship between a foster carer and their local authority.
The tribunal heard evidence in June 2023 and February 2024. There the claimants argued that denial of these protections breached their human rights and left them without an adequate legal remedy. They relied on the rights to private and family life (Article 8) and to freedom of expression (Article 10), combined with protection from discrimination (Article 14). Employment Judge Crosfill agreed that excluding the claimants from pursuing their discrimination and whistleblowing claims amounted to an unjustified interference with their human rights.
Addressing claims that this judgment would lead children to see foster carers as workers rather than parents, Judge Crosfill said: “I do not agree that the existence of these particular rights is inconsistent with the ability of a foster carer to provide a loving family home”. The judge considered that “the provision of an effective means of redress is likely to promote the care of children by foster carers.”
The claimants were supported by the National Union of Professional Foster Carers. They were represented by Jacqueline McGuigan of TMP Solicitors and Rachel Crasnow KC and Chris Milsom of Cloisters Chambers.
