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Foster carers aren’t ‘workers’ says Advocate General

August 1, 2018
Employment Law

Given the succession of cases that have gone in favour of claimants in recent times, you could be forgiven for wondering who could possibly fall outside the definition of ‘worker’ for the purposes of the Working Time Regulations 1998.  Well the Advocate General of the European Court of Justice has just come up with a possible contender: the foster carer.

The issues

In the Romanian case of Sindicatul Familia Constanţa and others v Direcţia Generală de Asistenţă Socială şi Protecţia Copilului Constanţa, a group of foster carers have sought to argue that under the EU Working Time Directive (WTD), they should be categorised as ‘workers’.  If their arguments were to succeed, they would be entitled to benefit from a variety of important employment rights, including the right to paid annual leave. 

However, Advocate General Wahl (a legal officer of the European Court of Justice) has recently published his opinion on the matter and expressed the view that foster carers who provide full-time care for children living in their own homes cannot rightly be classed as workers under the WTD.

What now?

Interestingly, various trade unions (including the IWGB) have been supporting their members in fighting for workers’ rights for foster carers here in the UK.  However, if the European Court of Justice agrees with Advocate General Wahl’s opinion and rules against the Romanian foster carers, this could make a successful claim here in the UK much more unlikely.

It’s worth keeping an eye on developments in this area.  In the meantime, if you are interested in hearing more about this particular case, please get in touch.

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