Alasdair Docwra

Foster carers are volunteers, who play an absolutely vital role in our arrangements for children. They cherish and protect children at what is often the most vulnerable and distressing period of the life of a child. The work they carry out is often difficult, sometimes very distressing, and of the very utmost importance. It seems that these foster carers should be afforded all support, including employment rights, which would include sick pay, holiday pay, guaranteed minimum wage and the right to “whistle blow” in relation to health and safety concerns.

It is for those reasons that Glasgow City Council’s current position on the issue seems somewhat harsh.

A decision was made in 2017 that a fostering couple in Glasgow do have employment rights and the benefits which arise from these rights, but the local authority, Glasgow City Council, have appealed the decision. The appeal is now being decided by a Judge, Lord Summers, before the Employment Appeal Tribunal in Edinburgh.

For Glasgow City Council it is argued that Foster Carers are parents, which should treat their children as if they are “natural children”. Glasgow City Council point out that natural children do not have a “contract” with their parents.

It was said that looking after their foster children, foster carers do not comply with working time rules, and cannot be sued for breach of contract if they neglect a child. Based upon these notions, Glasgow City Council maintained that foster parents are not employees, and should not enjoy employment rights.

Lord Summers is at present considering matters and will give a Judgement in due course.

Despite the very serious subject matter at issue, a note of humour was heard from the tribunal when the advocate for Glasgow City Council suggested to Lord Summers that an English decision should be followed, in which it was held that Foster Carers were not employees.

Lord Summers commented “there have been recent examples of Scots Courts taking a different view on things. It is possible for the English to get it wrong. I know that is a remarkable concept”.

Alasdair Docwra is a partner at Thorntons LLP