Welcome back to your weekly case law update. Last week we looked at two cases, one of them concerning equal pay, the other a right to privacy. The latter of those cases was an ECHR case that could have significant impact on email and social media monitoring both during recruitment and the course of employment.

This week we have two cases from the ET. Earlier this year ET judgments became widely available online and whilst they are not binding on future cases (only EAT cases are) they do sometimes offer insight into the approach adopted by the judiciary on current issues.

Johnstone & Johnstone v Glasgow City Council

Our first case is about employment status and asks:

Can multi-dimensional treatment foster carers be employees of the local authority whom they foster for?

Mr and Mrs Johnstone, the Claimants, were a husband and wife who provided foster care for Glasgow City Council, the Respondent. Unlike regular foster care, multi-dimensional treatment carers were not allowed to have another full-time job, were paid a salary in addition to a fostering allowance, received 4 weeks’ paid holiday and required to take training when not fostering a child.

The Claimants made complaints of victimisation and unlawful deductions from wages. However, the Respondent argued that the ET had no jurisdiction to hear the claim because the Claimants were neither employees or workers providing services.

A preliminary hearing was held to determine whether the Claimants did have employment status and if the ET jurisdiction to hear the claim. The ET found that the Claimants were employees.

They held that a mutuality of obligations to offer and accept foster work, attend training and not accept full time employment form another employer meant that the Claimants were employees. This was further strengthened by not being allowed to send a replacement worker to do the fostering and being paid a salary and holiday pay.

The takeaway point:

Yes, in this case they were. Unlike other foster carers, the mutuality of obligations and contractual relationship meant that these Claimants were employees. This judgment is in line with other recent employment status cases that have gone in favour of the employee if there is a mutuality of obligations.

As well as being a non-binding ET decision, this is also a Scottish case and therefore less applicable to employers in England and Wales.