Foster carers make “leapfrog” application in bid to take employment rights case to Supreme Court

According to the appellants’ lawyers, TMP Solicitors, the EAT has never before certified a case as suitable for a ‘leapfrog’ to the Supreme Court without itself considering and determining the appeal.

The case concerns the working rights of foster carers.

In January 2025, EJ Crosfill sitting at East London Employment Tribunal determined that W v Essex County Council [1999] compelled him to find that the relationship between the claimants and the local authorities they worked for was non-contractual.

But for that, he would have found that the foster carers were workers on ordinary domestic law principles, TMP Solicitors said.

The Employment Tribunal also concluded that the exclusion of foster carers from the right to bring complaints of discrimination and whistleblowing amounted to an “unjustified contravention of the European Convention on Human Rights”.

The Employment Tribunal concluded that under human rights law, the foster carers can bring claims of discrimination and whistleblowing. The Secretary of State for Education and the local authorities involved are appealing that part of the decision.

Before His Honour Judge Tayler this week, counsel for the appellants, Rachel Crasnow KC argued that foster carers had been “paralysed” to exercise their rights.

Counsel for Secretary of State, Robert Moretto, accepted that only the Supreme Court could overturn W v Essex but described the leapfrog application to the Supreme Court as “premature”. He said the appeal must be considered by the Employment Appeal Tribunal first.

HHJ Tayler reserved his decision on the leapfrog application.

TMP Solicitors said: “This case has significant implications for foster carers nationwide, potentially affecting rights to national minimum wage, holiday pay and discrimination. If foster carers are found to be workers by the Supreme Court this would be a seismic change to the UK care system as we know it.”

Jacqueline McGuigan, Solicitor at TMP Solicitors said: "The Employment Appeal Tribunal convened on 24 September 2025 to consider the leapfrog application to the Supreme Court brought by three foster carers in Oni and Others v London Borough of Waltham Forest and Others. This unprecedented application seeks permission for the case to proceed directly to the Supreme Court, bypassing the usual appellate route, on a point of law of general public importance. The outcome of this application could have a profound impact on thousands of foster carers and children across the United Kingdom, as it will allow the Supreme Court to address fundamental questions about employment status and rights within the foster care system. His Honour Judge Tayler has reserved his decision, and the parties await the Tribunal’s determination in due course."

Lottie Winson

See also: A widening of worker status? Charlotte Tosti analyses the Employment Tribunal’s ruling over whether foster carers are “workers”.