Foster carers: neither employees nor workers?

• To what extent can foster carers be considered employees or workers? Recent cases considering this question are confined to their own facts, but a shift may be occurring.

The Employment Appeal Tribunal (EAT) in Scotland in Glasgow City Council (appellant) v Johnstone and another (respondents) [2020] IRLR 908 considered a particular type of foster carer, and found that they were employees. This decision reflects a divergence from the long-established position in England (where there are several further cases awaiting judgment), but can be explained on the rather specific facts of the case.

Previous UK foster carer cases

The previous UK case law on ‘mainstream’ foster carers has been consistent over many years in confirming that they are neither employees nor workers, although primarily this is on the basis that the relationship was entirely regulated by statute. The absence of a contractual relationship between the foster carer and the local authority