The below article was written by Margaret Taylor for Scottish Legal News. It was originally published on the Scottish Legal News website on Tuesday 8 September.
09 September 2020
Balfour & Manson partner Robert Holland is convinced that employment is the best practice area for a lawyer to work in because it offers what he describes as the “best combination of black-letter law with a human-interest angle”. As head of his firm’s employment practice he would say that, but his recent advice to Glasgow foster parents Christine and Jimmy Johnstone demonstrates why.
Mr and Mrs Johnstone had taken Glasgow City Council to the Employment Tribunal to try to prove that as foster carers engaged by the local authority they were effectively employees and so should be entitled to employment rights such as sick leave and holiday pay. Though the tribunal agreed with their position, the council sought to have that decision overturned at the Employment Appeal Tribunal (EAT). Last week Lord Summers rejected Glasgow’s bid, upholding the original decision and handing the Johnstones what Mr Holland describes as a “very significant” victory.
The council has said it is considering its next steps, which may well involve a further appeal to the Inner House of the Court of Session. However, what the appellate decision effectively means is that Mr and Mrs Johnstone, who have not been able to look after any children since raising the original case in 2017, can return to work safe in the knowledge that the EAT judgment gives them full legal protection.
“Jimmy and Christine Johnstone have been really well served by their union, the IWGB, which is run by [general secretary] Jason Moyer-Lee,” Mr Holland says. “He’s been behind many of these actions in England, such as the one for Uber drivers that forced the status of people who were previously deemed to be self-employed to be recognised.
“He was behind the formation of this union and one of its main areas in Scotland is foster caring. He wondered, like myself, why these people, who work 24/7, didn’t have any rights or redress in law.
“Jimmy and Christine were brave enough to put their heads above the parapet and challenge Glasgow City Council on this. There have been cases in the past in England and they had been dismissed, with the courts saying foster carers were not employed or workers.
“In this case, not only were they deemed to be workers they were actually deemed to be employees - they were given the highest level of rights by the Employment Tribunal and the Employment Appeal Tribunal.”
For Mr Holland, the decision was significant because it recognised the very human aspect of the work that foster carers do – and the fact that even though they are driven by altruism they should still be remunerated for the work they do on behalf of the state.
“I thought of fostering as being a vocation that’s hugely important to society because it looks after vulnerable children,” he says. “I didn’t realise that foster carers had their rights taken for granted - they have no legal rights. When they need a holiday and want to be paid for that or if things go wrong between them and the local authority that employed them they have no redress or right to claim redundancy or back pay.
“I found that incredible given that on one view the job they do is of huge importance. In fact, it’s more important than many jobs people do in professional circles where there is the full range of legal rights.”
Helping people assert such rights is exactly why Mr Holland moved into employment law in the first place, having originally started his career as a trial lawyer.
“My background was in the sheriff courts - both civil and criminal - doing a lot of family actions and criminal trials,” he explains. “I think that’s where I picked up an interest in defending individuals. It was often disadvantaged individuals I represented and I was trying to get the best result for them. I first came across foster carers as witnesses and found them to be people with a huge amount of empathy.”
As well as the human aspect, Mr Holland says the Johnstones’ case is significant in that it allowed him and his counsel – Aidan O’Neill QC, who regularly works alongside Balfour & Manson on public-interest litigation – to test what they believed was an important point of law.
“This was brought as a test case to see how the courts felt as a matter of principle,” Mr Holland says. “If an individual comes to us and they have a case we think we can help with we will take it on; we start with the client first and foremost. Not all cases will lead to a particularly important position in law, but we will consider where we need to go and as we build that we’ll see within the facts whether there’s any interesting cross-over with significant points of law.”
Mr Holland believes that now Lord Summers has clarified the law when it comes to foster carers the impact could be far-reaching. Glasgow City Council begs to differ. In its response to both the tribunal and the EAT judgments the authority was keen to point out that the decisions relate to the specific kind of fostering Mr and Mr Johnstone were involved in and so cannot be extended to mainstream foster carers. This is because the latter category sees families look after children with minimal intervention from the authorities while the scheme the Johnstones were engaged under required weekly contact between the couple and both the council and the NHS. As the children being looked after under that scheme were deemed to be particularly vulnerable, Mr and Mrs Johnstone were also not allowed to seek full-time employment.
Despite this, Mr Holland says the appeal judgment is likely to prove “hugely significant” for various similar cases that have been brought on behalf of so-called ordinary foster carers.
“The next stage now is to bring ordinary foster-carer cases before the court,” he says. “We’ve got cases against a number of local authorities that have been sisted or frozen. We’ll be asking the local authorities to concede that foster carers are employees and if not we’ll proceed to full hearings with the background of this judgment.
“If you look at [cases against] Uber and Deliveroo the judgments have been in favour of people having these rights. The momentum is with us with these claims. It will be interesting to see if the councils will continue to throw money at opposing them. There are significant payments due because they are based on backdated holiday pay and backdated salary.”
Whether the local authorities facing such claims choose to concede in light of the EAT decision remains to be seen, though Mr Holland says he is mentally preparing for the possibility that the Glasgow City Council case could ultimately go all the way to the UK Supreme Court.
“This is one of those rare cases you get every five to 10 years where you think it’s such an important point of law that you wouldn’t be surprised if it went to the Court of Session or even the Supreme Court,” he says.
Partner, Head of EmploymentRobert Holland