Fostering responsibilities

A recent Employment Appeal Tribunal case has potential implications for the extent of local authorities' responsibility for the actions of foster parents, writes Peter Wake.

In a claim that arguably has significance in the field of civil litigation, the Employment Appeal Tribunal has confirmed in Bullock v Norfolk County Council that a foster carer was not a worker within the meaning of the Employment Rights Act 1996 and 1999 (the Acts).

Facts

B was a registered foster carer. The council sent her a notice of its intention to terminate her approval. She argued she was a ‘worker’ under the Acts and therefore had the right to be accompanied by a trade union representative at the hearing. The panel refused her request to be accompanied on the basis it was bound by the decisions in Rowlands v Bradford [1999] and W v Essex [1999] which confirmed that a foster carer was not a worker and there was no contractual relationship between the foster carer and the local authority. It also held that the European Convention on Human Rights 1950 article 6 – the right to a fair trial – did not affect the construction of "worker" for the purposes of the 1999 Act. B appealed.

Employment Appeal Tribunal

The decision of the employment tribunal was upheld. It was a prerequisite of the categorisation of a person as a "worker" that their relationship with a respondent was governed by contract. The Court of Appeal in W v Essex had unanimously held that the relationship between a foster carer and local authority was not one of contract. The fact that the Court of Appeal had reached its decision in W and Rowlands in different contexts did not alter their relevance or binding effect. Article 6 of the Convention did not require or permit a different meaning to be given to ‘worker’ in the Acts. The EAT appeared to endorse the following passage from the judgment of the tribunal:-

“…we would beg to point out that the whole concept of worker as normally understood, fits uneasily with the relationship of foster carers to a local authority in circumstances when that relationship is heavily prescribed by statute for the protection of children. Tribunals deal with the rights of employees and workers. Perhaps the whole area of fostering, insofar as there are disputes and arguments about safeguards, is more appropriately conducted in a different forum.”

Comment

In recent years there has been a proliferation of civil damages claims against local authorities relating to alleged abuse and neglect of children in care. Such claims can include alleged systemic negligence in relation to the system for selection, monitoring and review of foster parents. However, with foster care now the principal means by which children are looked after by the state, claimant practitioners have argued that an extension of the scope of vicarious liability to include foster parents (and therefore make local authorities strictly liable for torts committed by foster parents) is a natural and equitable step to take. An argument along similar lines was rejected by the Court of Appeal in the unreported case of Sargent v Walsall MBC [1985]. The instant decision, whilst evidently dealing with different issues in a different legal context, is nevertheless arguably a helpful one for councils. It ought to assist in resisting arguments to extend the potential vicarious liability of local authorities for the acts of foster parents in the event that this matter comes before the courts again.

Peter Wake is a Partner in the Local Government Team of Weightmans LLP. He can be contacted on 0151 242 6866 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..