The work of creating a family life: foster carers and labour law

ABSTRACT

Foster carers’ recent unionisation and their campaign to be recognised as workers in the UK, will provide the basis to interrogate the public/private divide in this paper. I will argue that the rejection of foster carers’ claims that they are workers by English and EU courts, as well as by the previous Conservative Government, have problematically relied on traditional conceptions of care work belonging in the private sphere. This highlights the pervasiveness of the public/private divide, which is still thought to separate the work of family life, from ‘proper’ work, performed by those with a job. This paper will draw on the ethic of care to show that all caring labour is work, and could be protected by labour law. Even if the breadth of labour law is unchanged, foster carers’ work clearly straddles both spheres, so they should be protected.

KEYWORDS:

• Foster carers
• labour law
• workers
• public/private divide
• care work

Acknowledgments

With thanks to David Mead and the anonymous reviewer for their feedback and constructive comments on previous drafts of this article.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Employees are considered to be under control if they do not have ‘the power of deciding the thing to be done, the means to be employed in doing it, the time when and the place where it shall be done.’ (Ready Mixed Concrete (South East) Ltd. V Minister for Pensions and National insurance [1968] 2 QB 497, 515. MacKenna J). The Supreme Court confirmed the importance of this test in Autoclenz Ltd v Belcher and others ([2011] I.C.R 1157).

2. Mutuality of obligations requires an exchange of service for remuneration and a promise by both parties to further performance. See Freedland (1976, p. 20).

3. This includes those working in emergency services, teachers, as well as junior doctors, other hospital workers and security services (see 89/391/EEC, Art 2(2)).

4. A similar provision has also been codified in EU law (renamed as reasonable accommodation), which requires ‘a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer.’ The Employment Equality Directive 2000/78/EC, art 5.