In a case referred by the Romanian courts, the ECJ has held that foster parents are not workers for the purposes of the Working Time Directive. This makes it more likely that cases currently pending before employment tribunals in the UK on foster parents’ entitlement to holiday pay are likely to be unsuccessful.
The case was brought by a group of Romanian foster parents who argued they should receive financial compensation for working on weekly rest days, public holidays and for untaken leave. The ECJ found that foster parents, who take in and integrate a child into their household on a continuous basis, were excluded from the scope of the Working Time Directive. To grant them the right to be separated from their foster child for a certain number of hours or go on annual leave would inherently undermine the fundamental objective of that integration. The rules on weekly working hours and annual rest periods under the Working Time Directive were incompatible with the nature of the role of foster parents and so they were held not to be workers.
The court noted that health and safety legislation required foster parents’ health and safety to be safeguarded “as far as possible”. The Romanian authorities did so by allowing foster carers to apply for periods of separation, which would be granted if the authority was satisfied it would not jeopardise the success of the placement.
Previous UK cases have taken a similar approach, holding that there is not an employment relationship between a foster carer and the relevant local authority. The cases to date have been decided on the basis that there is no contract in place between a foster carer and a local authority. This ECJ decision means any argument based on worker status under the UK Working Time Regulations is likely to fail.
There are a number of cases pending before employment tribunals on the status of foster carers and their potential entitlement to holiday pay. This decision and the previous UK cases suggest that foster carers are unlikely to succeed in establishing an entitlement to holiday pay, unless they can distinguish their situation from the arrangements that applied to the Romanian foster parents.
