An employment tribunal has held that foster carers can make employment tribunal claims under the Equality Act 2010 (EqA) against their local authority, rather than just county court claims. The decision is likely to have wider significance beyond foster carers, if upheld.
Oni and others v London Borough of Waltham Forest and others, 3204635/2021. 2025, Employment Tribunal. Employment tribunal decision (pdf, gov.uk), linked from gov.uk/employment-tribunal-decisions… .
Summary and comment
This case
An employment tribunal (ET) held that foster carers can make employment tribunal claims against their local authority under the EqA. Although the EqA wording did not allow this (because the wording requires a contract), the ET said the EqA should be re-interpreted to comply with human rights law (below Human rights).
This is not an appeal decision, so is not binding on other tribunals. However, the local authorities have appealed, so we should get a appeal decision. The appeal will be heard by a Employment Appeal Tribunal, after which the EAT may reconsider an application for a leapfrog appeal straight to the Supreme Court: Employment Appeal Tribunal Hears Leapfrog Application in Oni and Others v London Borough of Waltham Forest and Others 2025 (tmpsol.com).
Even if a foster carer were not entitled to make an employment tribunal claim, they would still have an EqA claim, said the ET. They would be able to make a county court claim against the local authority under s.27 EqA, eg relating to “public functions” (s.27(6)). However the ET held that this county court option was significantly less advantageous than the employment route, and was not a sufficient alternative.
The case also considered claims other than the EqA. I don’t deal with those.
Wider significance
If upheld, the decision has potential to apply much more widely than foster carers:
- The decision could open the door to EqA employment claims by other people who are similar to employees, but who do not have a contract (unless expressly brought within the EqA anyway).
- Article 14 (non-discrimination) of the European Convention on Human Rights only applies within the “ambit” of another convention right: “Ambit” of European Convention rights. The ET seems to consider – below “Ambit” – that a claim alleging any EqA discrimination (including disability discrimination) within an employment relationship falls within the ambit of Article 8 (private and family life), so Article 14 applies. This could mean that the EqA employment provisions sometimes need to be re-interpreted to comply with Article 14 of the Convention. To date, it has often been considered that this is not normally so in the employment sphere, on the basis that work is not usually within the ambit of a Convention right (“Ambit” of European Convention rights>Disability discrimination by employers: Are claims within ambit of Article 8?). However, discrimination claims may be an exception.
- A particular situation where this may be helpful is work experience accessed through education providers: see Work placements related to education courses. The Court of Appeal in Blackwood used EU law to fill a gap in the EqA, which might otherwise mean that if a university etc had “power to afford access” to a work placement, the student would have no claim for discrimination by the work placement provider itself. The status of Blackwood is unclear after Brexit. However if that EU re-interpretation of the EqA is no longer available, Article 14 of the European Convention might fill the gap, helped by the ET’s interpretation of Article 8 (if upheld): Work placements related to education courses>Article 14 of European Convention on Human Rights.
The ET rejected an argument based on EU law, below. Note that even if EU law gave foster carers the right to claim to an employment tribunal (the ET held not), it would be unclear whether that effect continued after the start of 2024: Brexit: Effect of EU law when interpreting Equality Act, from 2024>EU law going beyond EqA wording but not preserved by regulations.
Links
- Employment Appeal Tribunal Hears Leapfrog Application in Oni and Others v London Borough of Waltham Forest and Others 2025 (tmpsol.com), October 2025
- Judge rules foster carers are able to bring discrimination and whistleblowing claims (equalityhumanrights.com), Feb 2025
- Oni and Others v LB Walthamstow and Others (tmpsol.com), Jan 2025
- Oni and Others v London Borough of Waltham Forest and Others: a widening of worker status? cloisters.com), Jan 2025.
Facts
Three foster carers brought various employment tribunal claims, against the respective local authorities who had placed children in their care. Some claims were under the EqA. This was a preliminary decision on whether the relationship between a foster carer and local authority is such that the foster carer is entitled to claim to an employment tribunal.
Domestic law (excluding EU and human rights)
To be an “employee” within the wording of s.83(2)(a) EqA, the foster carer would need to have with the local authority “a contract personally to do work” (Employees, workers and beyond>Definition of worker). The Court of Appeal in W v Essex County Council [1999] – and courts in subsequent cases – had held there was no contract here (§§122-128). Rather the foster carer’s relationship with the local authority was governed by statute and regulations.
The ET rejected an argument by the foster carers that the Supreme Court decision in Uber BV v Aslam [2018] had implicitly overruled W v Essex CC (§119). The ET said Uber did not alter the fact that a contract was required ((§§141-155). Therefore, on a purely domestic interpretation of s.83(2)(a) EqA, which requires a contract, the foster carers could not succeed – because W v Essex CC was binding on the ET that they had no contract with the local authority (§164). (“Purely domestic” means without taking account of EU law and the European Convention on Human Rights, considered below.)
The ET added that if the ET were not bound by W v Essex CC, and assuming the arrangements between the foster carers and local authorities were contractual, the ET would find that the foster carers were covered by the EqA. They would fall within s.83(2)(a) EqA. (§§184-186)
EU law
The ET rejected the foster carers’ argument that EU law required the ET to read the EqA as allowing a foster carer to claim to an employment tribunal.
The ET decided it could not hold that EU Law required a remedy for discrimination claims by foster carers. To allow the ET to depart from UK Court of Appeal decisions, there would need to be an EU court decision saying that protection under the particular discrimination directives was independent of how national law classified the worker (§§191-223, particularly §219 & §221).
Effectiveness of remedy
So the foster carers’ argument based on EU law failed. But if the ET was wrong about that, ie if EU law did require a remedy, the ET agreed with the foster carers that there was a breach of the EU requirement for an effective and equivalent remedy. (This EU requirement is summarised at §252.) The ET said the ability to make a county court claim was not sufficient. In more detail:
Foster carers did have an alternative claim for discrimination. If a foster carer was not covered by the EqA employment provisions, they could make a county court claim against the local authority under s.27 EqA – either as regards public functions, under s.27(6), or provision of services to the public under s.27(1)-(5). (§§244-251)
Did this county court route provide the foster carers with an effective and equivalent remedy under EU law? (§252). The ET decided no it didn’t provide an equivalent remedy. At §257 the ET quoted the Court of Appeal in Eckland v Chief Constable of Avon & Somerset Constabulary (bailii.org), 2022, at §§36-40 (of Eckland), as to why the right to bring a discrimination claim in the county court under s.27(6) could not be regarded as equivalent to the right to bring such a claim in the employment tribunal. The passages quoted from Eckland relied on the Supreme Court decision in P v Commissioner of Police of the Metropolis (bailii.org), 2017 at §29 (Employees, workers and beyond>Claims by police officers). The ET said that even were the ET not bound by those cases, it would reach the same conclusion (§§252-269):
268. In my experience very few discrimination claims [to the County Court] would fall outside the scope of multitrack claims. If such claims were conducted in the County Court the risk of an adverse costs order [ie to pay the local authority’s legal costs] would act as a substantial risk factor. At the risk of sounding self-serving I consider the fact that the Employment Tribunal has the skills and expertise to deal with discrimination claims in a very wide range of fields involving employment relationships and quasi employment relationships makes the Employment [Tribunal] very much the natural home for a dispute brought by a foster carer against the local authority to whom they provide services.
Note: Fast Track vs Multi-track Claims (helix-law.co.uk)
Again if the ET were wrong so that EU law did require a remedy, the ET considered that the EqA should be re-interpreted under the Marleasing principle, to allow an employment tribunal claim by foster carers. This did not go against the grain of the legislation. (§§270-273)
Human rights
Under the domestic law arguments above, the ET did not consider foster carers could make an employment tribunal claim under the EqA. Even so, the ET held they were entitled to make such a claim, as the EqA should be read to comply with Article 14 of the European Convention on Human Rights (ECHR).
“Ambit”
Article 14 only applies within the “ambit” of other convention rights (“Ambit” of European Convention rights). The ET held that the claims in the present case fell within the ambit of Article 8 (private and family life). (§§299-316)
The ET accepted that “in general” Article 8 does not apply to employment disputes. However, by itself that was of little assistance. The ET was not concerned with generalities, but with whether discrimination claims brought by foster carers fell within the ambit of Article 8. (§301)
The ET relied particularly on Boyraz v Turkey, 2014, a sex discrimination case, where the European Court of Human Rights (ECtHR) said:
44. … the concept of ‘private life’ extends to aspects relating to personal identity and a person’s sex is an inherent part of his or her identity. Thus, a measure as drastic as a dismissal from a post on the sole ground of sex has adverse effects on a person’s identity, self-perception and self-respect and, as a result, his or her private life. … Besides, the applicant’s dismissal had an impact on her ‘inner circle’ as the loss of her job must have had tangible consequences for the material well-being of her and her family… The applicant must also have suffered distress and anxiety on account of the loss of her post. What is more, the applicant’s dismissal affected a wide range of her relationships with other people, including those of a professional nature and her ability to practise a profession which corresponded to her qualifications… . Thus, the Court considers that Article 8 is applicable to the applicant’s
complaint.
Boyraz v Turkey (hudoc.echr.coe.int), ECtHR, 2014
The ET concluded that where a foster carer who accommodates, or might accommodate children within the household raises a claim that they have been subjected to an act or omission that contravenes the EqA, then such a claim falls within the “ambit”.
However, the ET goes further, and seems to consider that a claim alleging EqA discrimination within an employment relationship will of itself bring the claim within the ambit of Article 8.
306. At the heart of any complaint brought under the EA 2010 [ie Equality Act 2010] is the concept that the treatment is informed by protected characteristics. In the usual cases those are the protected characteristics of the complainant. In rarer cases they are the protected characteristics of others. The protected characteristics identified in Section 4 and defined in sections 5 to 12 are matters that are either innate or, by adoption, become a part of the make-up of the person. They are key aspects of identity. I see no reason to conclude that the remarks in Boyraz v Turkey about discrimination on the ground of sex leading to ‘adverse effects on a person’s identity, self-perception and self-respect’ should not apply in the same way in respect of other protected characteristics. I go further than that. Not all claims will arise from the protected characteristics of the complainant. However, if such claims are made out the effect of the treatment is likely to engage dignity in the workplace and issues of self-respect in broadly the same way as if the complainant was the primary victim.
307. A successful claim under the EA 2010 will usually result in an award for injury to feelings. Experience tells me that those awards are made to compensate for a wide range of upset from mere indignation at the lower end through to severe setbacks to mental health that can be life changing. I cannot envisage a claim under the Equality Act that would have no effect on professional relationships or impact on a workers wider relationships with others. These are factors which the [ECtHR] has held are sufficient to engage Article 8.
308. If this were the only matter in play I would none the less be satisfied that a claim alleging discrimination within an employment relationship would of itself bring the claim within the ambit of Article 8. However, the following additional reasons re-force that conclusion. …. [The ET went on to consider matters specific to foster carers.]
The ET rejected an argument that the claims fell within the ambit of Article 6 (fair trial). (§§296-298)
“Other status”
Under Article 14 ECHR, rights must be secured without discrimination on any ground listed or “other status”. It does not seem to have been disputed that their status as foster carers, or as persons working otherwise than under a contract, was an “other status”. In any event the ET considered it clear that this was so. (§279)
Analogous situation
The ET accepted that foster carers are in an analogous situation to workers protected from discrimination (§§317-329, particularly from §327)
Justification
The ET held that it was not justified to require foster carers to make EqA claims in the county court, rather than in an EqA employment tribunal as workers generally are permitted to do (§§331-385). (What is ‘discrimination’ under Article 14 European Convention?>Justification)
It was acknowledged that the contracting state has a “margin of appreciation”, ie a level of discretion (§§333-335).
The “legitimate aims” relied on by the Secretary of State (ie the government) are at §331. The ET said later that the concern of the Secretary of State was that if the foster carers had access to the rights they sought, it would impact on the welfare of children (§335, §345). One point made by the ET was that if litigation in the employment tribunal was corrosive on the looked-after child, the ET did not see that it was any less so in the more formal setting of the civil courts (§351).
The ET said that the relationship between foster carers and foster service providers is a working relationship, albeit one with some special features. The employment tribunal is the specialist forum for dealing with discrimination claims that arise in the context of work. The more formal route through the county court did not provide the same expertise (see Eckland above). Overall the informal procedure and low risk of costs in an employment tribunal were significantly more advantageous than a route through the county court. (§§373-375)
The matter that had to be justified was the requirement of foster carers to bring any discrimination claims before the civil courts under Part 3 of the EA 2010 as opposed to in the employment tribunal. Once it was accepted that discrimination arising from the position of being a foster carer can be brought before the courts (under s.27 EqA, above Effectiveness of remedy), many of the State’s concerns about the impact of litigation simply fell away. No matter how the role of a foster carer involved the provision of a loving family environment, it was a vocation that sits firmly in the sphere of work (§§381-382). The ET said :
383. I have set out by reasons why I consider that the Employment Tribunal is the specialist and appropriate forum for disputes about the sphere of work. Discrimination of all sorts is a scourge that should be tackled as far as possible by a legal process which is specialist, as informal as possible and accessible. The Employment Tribunal offers that. The other forms of redress identified by the [local authorities] and Secretary of State do not.
Excluding foster carers’ EqA claims from the employment tribunal was not a proportionate means of meeting the identified legitimate aims. So it was a breach of Article 8 read with Article 14 of the European Convention on Human Rights. (§§384-385)
[Comment: Strictly, I’d think the breach is of Article 14 read with Article 8.]
Remedy on human rights (Article 14)
The ET said the courts should re-interpret the EqA to allow employment tribunal claims by foster carers. This did not offend against the purposes of the EqA. (§§389-387, 391-393)
S.83(2)(a) EqA could be interpreted as meaning “employment under a contract of employment, a contract of apprenticeship or a contract or employment relationship personally to do work” §392.
