Landmark legal case ‘could lead to employment rights for foster carers’

Jimmy and Christine Johnstone have been locked in a long running legal battle with the local authority over their status.

A 2017 employment tribunal found that their fostering contract - a specialist deal with the council’s Treatment Foster Care (TFC) service - amounted to a contract of employment.

The authority tried to appeal that decision, but an Employment Appeal Tribunal has now found in favour of the Johnstones.

While the couple’s case involved a particular set of circumstances, their legal team claims it could lead to mainstream foster carers gaining rights such as pension entitlement and whistleblowing and discrimination protection.

Robert Holland, Head of Employment at Edinburgh law firm Balfour+Manson, said: “Jimmy and Christine Johnstone have done amazing work and I am delighted the judge has found in their favour.

“They were in a special category of foster carer, but although this decision relates to that particular category only, it could have much wider implications for Scotland’s 4000 foster carers.”

According to Mr Holland, the case is the first of its kind to state that foster carers are employees and could lead to further arguments in the courts over the status of all foster carers.

“The Johnstones’ victory means it is more likely that we will see an argument brought that all Scotland’s foster carers deserve employment rights,” he said.

“We have constantly argued that the Johnstones were in an employed position and that it was unreasonable to treat the brilliant work they and other foster carers do as only a vocation.”

Mr and Mrs Johnstone, of Knightswood, decided to take legal action after raising concerns about a young person who had been placed in their care via the council’s specialist TFC service, which dealt with some of Glasgow’s most vulnerable and troubled children.

The couple claimed that a lack of action by the authority over concerns about their own health, as well as that of the child, left them with no choice but to seek legal action.

The service closed down shortly after Mr and Mrs Johnstone won their case.

Speaking following the most recent decision, the couple said they were “over the moon” the tribunal found in their favour.

Mr Johnstone said: “For years we were told we had no rights. No employment rights, no right to representation or due process and no right to speak out even when our family was at risk. This is the reality facing foster care workers nationwide.

“We are delighted with the ruling and hopeful that it will encourage others to take up the fight. All foster care workers want is to have basic protections everyone should be entitled to so that we can do the best job we can for our young people.”

Most carers sign agreements with councils, which are not considered contracts of employment. The Johnstones argued that their specific circumstances meant they should have the same entitlements and protections as council workers.

This is something that the IWGB trade union wants to see for all foster carers.

IWGB Foster Care Workers branch secretary Pauline Graham said: “The question of employment rights for foster care workers goes to the heart of why our foster care system is in crisis. Carers are leaving the system in droves as they are pushed around, victimised and neglected by their employers. The result is a growing number of young people in children’s homes.

“This hard won victory by Jimmy, Christine and the IWGB paves the way for more foster care workers to follow suit in claiming the rights and protections they have been denied for decades.

“What’s at stake is nothing less than the wellbeing of our most vulnerable children.”

A spokesman for Glasgow City Council said: “This judgment relates to a service that provided a specialist form of foster care. We are now carefully considering the implications.

“However, we do note that the findings in this judgment do not extend to the status of mainstream foster carers.”