Hope for thousands of carers after landmark tribunal ruling

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Aug 04, 2017
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James Johnstone and his wife Christine argued that they should be classed as employees


Two foster carers in Scotland have won the right to be classed as employees in a ruling that could lead to holiday pay and a guaranteed minimum wage for thousands (Gurpreet Narwan writes).

An employment tribunal in Glasgow rejected the city council’s assertion that James and Christine Johnstone, both 54, were self-employed. The Johnstones, who have fostered five children over about six years, claimed that they suffered an unlawful deduction from their wages after not having a child placed with them for a year.

The couple were seeking compensation for withdrawal of wages but were unable to do so because they were not regarded as employees. Foster carers sign an agreement with councils, which previously was not deemed an employment contract.

The judgment noted that as part of their agreement the couple were paid an annual salary, were unable to take on any other work and were required to report to the council. Judge Ian McFatridge wrote: “It appeared clear to me that the degree of control was such that the claimants were employees working under a contract of service.”

Key to the ruling was the judge’s acknowledgment of the unusually intense nature of the Johnstones’ work. The couple specialise in looking after children with extreme behavioural problems, adding to the responsibilities that other foster carers would face.

He ruled that these obligations amounted to a contract of employment. While Judge McFatridge noted that he was “not in any way making a finding about the status of ordinary mainstream foster carers”, unions said the ruling would nevertheless bolster the case for others.

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