Proposed Foster Care Workers’ Bill

Author:Lord John Hendy QC
Published:28 January 2019
Country:

Proposed Foster Care Workers Bill

A Bill to regulate the engagement of foster care workers and for associated matters

A proposed Foster Carers Bill by Lord John Hendy QC, Old Square Chambers; 28 January 2019

Proposed Foster Care Workers Bill

THE REGULATORY FRAMEWORK

The purpose of the Act is to regulate the foster carers’ profession and establish for the first time clear rights and duties both for foster care workers and for those that engage them. The Act will not affect the legislation which regulates foster care and the legal duties imposed on foster care workers in relation to the children under their care, nor will the Act affect the tax arrangements for foster care workers. The Act is intended instead to regulate the foster carers’ profession and confer on foster carers the status of professional workers and the rights and duties which go with such a status.
The Act is relatively short but will give the Secretary of State for Education (who is the Minister responsible for foster carers) powers to create secondary legislation, i.e. by Order (As, for example, in the analogous Health and Social Work Professions Order 2002/254, http://www.legislation.gov.uk/uksi/2002/254/contents/made.) or Regulations. (As, for example, in the analogous Social Workers Regulations 2018/893. https://www.legislation.gov.uk/uksi/2018/893/pdfs/uksi_20180893_en.pdf) It is these legal documents which will set out the detailed framework for the regulation of the profession of foster carer. For the purposes of the Act, there appears to be no material difference between the two and their substantive content will be called ‘Rules’ in this Note.
The model used here has been informed by consideration of the structure and regulations of:
1. the Health Care Professionals Council,
2. Social Work England,
3. the Nursing and Midwifery Council,
4. the General Optical Council,
5. the General Osteopathic Council,
6. the General Medical Council,
7. the General Chiropractic Council.
Of course, the precise framework differs amongst these different professions but the scheme of a short Act and full Rules by secondary legislation is normal.
One feature of the Foster Care Workers’ Act is that the Foster Care Workers’ Council (the ‘Council’) will have the power (and duty) to propose to the Secretary of State for approval, the Rules and amendments to the Rules. As noted above, the Rules will provide for the detailed regulation of the profession.
The Council will also have the duty to publish Guidance Documents and Practice Notes to elaborate various Rules, relevant processes, best practice, and to provide information.

PART ONE: THE REGULATORY BODY

The Foster Care Workers Council (“the Council”) will be the governing body of the profession with the aim of maintaining, improving and, ultimately, enforcing professional standards and ensuring, so far as is reasonably practicable, universal best practice.
The Council will be appointed by the Secretary of State who shall ensure an equal number on the Council of representatives of organisations which appear to her to be representative of the following constituencies:
1. Agencies which place children in care,
2. Trade unions which represent foster care workers,
3. Universities and colleges which train foster care workers and/or research into matters of concern to those involved in foster care,
4. Charities concerned with the fostering sector.
The Secretary of State shall in addition appoint one or more representatives of:
1. Adults who spent part or all their childhood in foster care,
2. Her Department.
There shall be an equal number in categories (a) and (b) in paragraph 8 and together the appointees in paragraphs 8(c)-(d) and 9 shall be equal in number to those in category 8(a) (which is the same as the number in category 8(b)).
The Council shall have a chairperson who shall be elected by the Council and shall not be from category 8(a).
The Council shall appoint as members of the following Committees of the Council such a number of members of the Council as the Council considers appropriate together with an equal or smaller number of individuals who the Council considers will assist the Committee to do its work. The Committees referred to are:
1. The Training and Registration Committee (to advise the Council on training and registration of foster carers);
2. The Investigating Committee (to carry out investigations into allegations about fitness to practise);
3. The Fitness to Practise Committee (decides whether a case should be referred to the Tribunal for a fitness to practise hearing.)
4. The Tribunal Advisory Committee (to advise the Council on the recruitment, training and assessment of Tribunal panellists and panel Chairs, and to ensure fair and uniform procedures compliant with the rules of natural justice).
The Council may appoint such other Committees of the Council as it shall deem appropriate.
Every Committee of the Council shall be chaired by a member of the Council
Every Committee of the Council shall contain at least one member in category 8(a) above and at least one member in category 8(b).
There shall be a Foster Care Workers Tribunal which will be appointed by the Council but will be independent of the Council. The Service will conduct hearings and make decisions in relation to fitness to practise. (Relatively recently (2017) the HCPC and GMC created independent tribunal services, the Health and Care Professions Tribunal Service and the Medical Practitioners Tribunal Service, after the government announced its intention to introduce a greater separation between the investigation and adjudication of fitness to practise hearings. This demarcation is consistent both with Art.6 European Convention on Human Rights and the rules of natural justice developed by the common law.)
The Rules will set out:
1. The principal functions of the Council shall be to establish from time to time standards of education, training, conduct and performance for members of the foster care profession and to ensure the maintenance of those standards, (analogously to the Health and Social Work Professions Order 2002/254 (“HSWP Order 2002”), s. 3(2)).
2. The over-arching objective of the Council in exercising its functions is the protection of children in care, and the objectives of the Council in pursuing the over-arching objective involves the pursuit of the following objectives:
  1. to ensure the fair treatment and dignity of foster care workers;
  2. to promote and maintain proper professional standards and conduct for foster care workers; and
  3. to promote and maintain public confidence in the profession of foster care.
  (Adapted from HSWP Order 2002, s. 3(4) and (4A)).
3. The constitution of the Council, as briefly described above, including its committees (see analogously HSWP Order 2002, s. 3(7A) and (8), and Sched. 1 and Standing Orders of the Health and Care Professions Council, which establish “basic rules about how the Council conducts its proceedings”;(https://www.hcpc-uk.org/globalassets/about-us/who-we-are/council-and-committees/code-of-corporate-governance/standing-orders-council.pdf) Standing Orders of the Committees of the Health and Care Professions Council which establish “basic rules about how HPCP committees conduct their proceedings”;(https://www.hcpc-uk.org/globalassets/about-us/who-we-are/council-and-committees/code-of-corporate-governance/standing-orders-committees.pdf) and The Health and Care Professions Council (Education and Training Committee) (Constitution) Rules 2013.(https://www.hcpc-uk.org/globalassets/resources/legislation/the-health-and-care-professions-council-education-and-training-committee-constitution-rules-2013.pdf))
4. d. The procedure by which the Council will make Rules, (see HSWP Order 2002, s. 41, Social Workers Regulations 2018 (“SWR 2018”), reg. 3).

REGISTRATION

The Council shall appoint a Registrar and establish and maintain a register of persons entitled to be foster care workers.(See in relation to this HSWP Order 2002, ss.4 and 5.)Foster care workers must be registered in order to lawfully practise (cp. SWR 2018, reg. 28).
The Council shall from time to time—
1. establish the standards of proficiency necessary to be admitted to the register being the standards it considers necessary for safe and effective practice as a foster carer; and
2. prescribe the requirements to be met as to the evidence of good health and good character in order to satisfy the Education and Training Committee that an applicant is capable of safe and effective practice as a foster carer.
The Council shall—
1. before prescribing the requirements mentioned in paragraph 18(b), consult the persons referred to in paragraphs 8 and 9 above.
2. publish those requirements.
Provision will be made in this Act to allow for the automatic admission to the register of all foster care workers who are approved by a fostering service provider or employer at the time of coming into force of the Act.
The Rules will provide for the format and content of the register, cp. HSWP Order 2002, s. 6 and 7(1)-(2), The Health and Care Professions Council (Registration and Fees) Rules 2003, s. 3,(https://www.hcpc-uk.org/globalassets/resources/legislation/consolidated-registration-and-fees-rules.pdf) SWR 2018, reg. 9; and the fee to be charged for registration/renewal/ readmission/ restoration, cp. HSWP Order 2002, s. 7(1)-(2), Health and Care Professions Council (Registration and Fees) Rules 2003 s. 14-18,(https://www.hcpc-uk.org/globalassets/resources/legislation/consolidated-registration-and-fees-rules.pdf) SWR 2018, reg. 17.
Provision will be made for public access to the register, cp. HSWP Order 2002, s. 8.
The Rules will set out the procedure for registration, cp. HSWP Order 2002, s. 7(1) and (2), The Health and Care Professions Council (Registration and Fees) Rules 2003, s. 4,(https://www.hcpc-uk.org/globalassets/resources/legislation/consolidated-registration-and-fees-rules.pdf) or SWR 2018, reg. 10; and the conditions which an applicant must meet to be registered, cp. HSWP Order 2002, s. 9(1)-(2), SWR 2018, reg. 11.
The Rules will define an ‘approved qualification’, an award of which will be a condition for registration, see under ‘training’ below (and see cp. HSWP Order 2002, s. 12, SWR 2018, Sched. 1).
There will be a duty to provide information to the Council when required to do so in relation to registration, cp. SWR 2018, s. 16.
It will be an offence fraudulently to procure or attempt to procure the making, amendment, removal or restoration of an entry on the register, cp. SWR 2018, s. 30.
The Rules may provide (if it is required) for annotation of entries in the register (where a foster care worker has obtained additional specialist approved training, their entry on the register will be annotated with that information), cp. SWR 2018, reg. 12.
The Rules will make provision for periodic renewal of registration, cp. HSWP Order 2002, s. 10(1)-(2), The Health and Care Professions Council (Registration and Fees) Rules 2003, s. 11, SWR 2018, reg. 13; and for readmission onto the register (where a person has previously been on the register but did not renew his/her registration or has been removed from the register and wishes to re-join), cp. HSWP Order 2002, s. 10(4). s. 33, SWR 2018, s. 15.
The Rules will make provision for removal from the register in prescribed circumstances, cp. SWR 2018, reg. 14.
The Rules will provide for appeals to the Employment Appeal Tribunal (EAT) against a decision to refuse an application for: registration, renewal, readmission, or restoration, cp. HSWP Order 2002, s. 37 and the HCPC rules on registration appeals,(https://www.hcpc-uk.org/globalassets/resources/legislation/consolidated-registration-appeals-rules.pdf) SWR 2018, reg. 19.

TRAINING (See in relation to this HSWP Order 2002, ss.3 and 15; SWR 2018, reg. 20.)

The Council shall from time to time establish—
1. the standards of education and training necessary to achieve the standards of proficiency it has established under paragraph 18;
2. any additional training required to be certified as having a particular specialist skill set; and
3. the requirements to be satisfied for admission to, and continued participation in, such education and training which may include requirements as to good health and good character.
The standards mentioned in paragraph (32)(a) shall include such matters as the outcomes to be achieved by that education and training.
Before establishing the standards or requirements referred to in paragraph 20(a) the Council shall consult such of those persons listed at paragraphs 8 and 9 as it considers appropriate and the Training and Registration Committee.
The Training and Registration Committee shall—
1. ensure that universities and other bodies in the United Kingdom concerned with such education and training are notified of the standards and requirements established under paragraph (32); and
2. take appropriate steps to satisfy itself that those standards and requirements are met.
The Committee may in particular, approve, or arrange with others to approve—
1. a course of education or training which the Committee is satisfied confers or would confer on persons completing it successfully the standards of proficiency mentioned in paragraph (32);
2. qualifications which are granted following success in an examination, or some other appropriate assessment, taken as part of an approved course of education or training;
3. institutions which the Committee considers to be properly organised and equipped for conducting the whole or part of an approved course of education or training;
4. such tests of competence or knowledge of such languages as it may require.
The Council shall maintain and publish a list of the courses of education or training, qualifications and institutions—
1. which are for the time being approved under the Rules; or
2. which have been approved under the Rules but which are no longer so approved, together with a record of the periods in respect of which they were approved.
The Council shall monitor education Providers to ensure that the prescribed standards continue to be met after approval (cp. SWR 2018, reg. 20) and provide for inspectors to do so (cp. HSWP Order 2002, s. 16, SWR 2018, reg. 21).
The Council will have the power to refuse approval to and withdraw approval from education Providers which the Council believes have not met or are not meeting the prescribed standards (cp. HSWP Order 2002, s. 18, SWR 2018, reg. 23) and attach conditions to the approval or re-approval of education Providers (cp. SWR 2018, reg. 22).
All foster care workers who have completed training by a fostering service provider or employer and are registered and approved as foster carers at the time of the coming into force of this Act shall be deemed to have met the necessary training requirements in the Act.

FITNESS TO PRACTICE

1. The Rules will regulate the fitness to practise of foster care workers as follows (cp. HSWP Order 2002, s. 22(1), SWR 2018, reg. 25(2)).
2. The Council will be required to establish and keep under review standards of conduct, performance and ethics expected of foster care workers and prospective foster care workers, and publish those standards together with Guidance on issues arising from or relating to them, cp. HSWP Order 2002, s. 21.
3. The Rules will provide that a question may only arise as to a foster care worker’s fitness to practise by reason of an allegation on one or more of the following grounds:
  1. Serious professional misconduct as a foster care worker,
  2. lack of competence or capability as a foster care worker,
  3. a conviction (including a court martial) or caution in the United Kingdom for a criminal offence (other than for minor motoring offences incapable of causing or contributing to disqualification from driving),
  4. a conviction not falling within sub-paragraph (c) for an offence which, if committed in England and Wales, would constitute a criminal offence in (c) above,
  5. adverse physical or mental health sufficient to impair the delivery of foster care,
  6. being included—
    1. by the Disclosure and Barring Service in a barred list (within the meaning given in section 60(1) of the Safeguarding Vulnerable Groups Act 2006 or article 2(2A) of the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007), or
    2. by the Scottish Ministers in the children’s list or the adults’ list (within the meaning given in section 1(1) of the Protection of Vulnerable Groups (Scotland) Act 2007), or
  7. not having the necessary knowledge of a language reasonably specified as a condition of the engagement of the foster carer.
4. An alleged matter which occurred outside the United Kingdom, or at a time when the person was not registered, may only be grounds for the purposes of paragraph 43 where the Fitness to Practice Committee reasonably considers that to be in the public interest.
5. The Act will provide that in fitness to practise proceedings –
  1. The standard of proof applicable will be that applicable to civil proceedings;
  2. The proceedings shall be conducted in accordance with the rules of natural justice;
  3. A foster care worker may be represented by any person of their choice;
  4. The foster care worker or their representative will have the right to cross examine any witness giving evidence against the foster care worker save:
    1. Where a hearsay notice complying with the rules applying to such notices in the civil courts has been properly served and where that hearsay evidence would be permitted in the civil courts;
    2. To the extent that and in accordance with such restrictions as would be imposed on cross examination in the civil courts for the protection of the young or vulnerable;
    3. The cross examination would be an abuse of the process.
  5. In cases where cross-examination is restricted or precluded the permitted evidence obtained or provided will be accorded such weight as would be given to such evidence in the civil courts.
6. The Council will make regulations setting out—
  1. the criteria to determine whether there are reasonable grounds for investigating whether a foster care worker’s fitness to practise is impaired,
  2. the timescales within which the steps in fitness to practise proceedings are to be taken,
  3. any requirements and restrictions in relation to the qualifications of those who may be appointed as an adjudicator, case examiner or investigator in fitness to practise proceedings,
  4. d. and regulating any other aspect of fitness to practise proceedings which the Council may consider desirable.
7. The Council will be required to appoint such advisers or staff, as it considers necessary for the purpose of acting as—
  1. screeners,
  2. investigators,
  3. case examiners, and
  4. adjudicators who will sit in the Foster Care Workers Tribunal, for the purposes of each fitness to practise proceedings.
8. A person may not be appointed under more than one sub-paragraph of the preceding paragraph in fitness to practise proceedings relating to the same foster care worker, or as an adjudicator, if they have been appointed as an investigator or a case examiner in relation to any fitness to practise proceedings in the preceding two years.
9. The Rules will provide for the qualification, selection and appointment of panels of persons who will compose the Foster Care Workers’ Tribunal.
10. The Tribunal Advisory Committee will:
  1. supervise the appointment of the members of the Tribunal,
  2. establish a fair process for the selection of the members of the panel to conduct each case,
  3. advise on the number of members of the panel to hear a case (though normally the panel will be three).
11. The chair of a panel to hear a case will be a barrister or solicitor of not less than 7 years in practice and a list shall be maintained of persons so qualified and willing to serve.
12. Panel members may be remunerated in accordance with scales established by the Tribunal Advisory Committee.
13. The Council will establish a threshold which must be met for an investigation to be undertaken, which threshold will bind the screeners, cp. SWR 2018, reg. 25(5)(a), Sched. 2, Part 1, s. 1-2, HCPC Standard of Acceptance for Allegations Policy Document.(https://www.hcpc-uk.org/globalassets/resources/policy/the-standard-of-acceptance-for-allegations.pdf)
14. The Rules will set out the procedure for an investigation into an allegation, cp. SWR 2018, Sched. 2, Part 2, s. 3-5.
15. The Rules will provide that after an investigation (within specified time limits) the case will be referred to case examiners who will determine whether there is a case to answer, and, if so, whether the case should be referred to the Foster Care Workers’ Tribunal, cp. Social Workers Regulations, Sched. 2, Part 2, s. 6.
16. The Rules will provide that under certain conditions a case referred to the Foster Care Workers’ Tribunal may be disposed of without a hearing, cp. SWR 2018, Sched. 2, Part 2, s. 9.
17. The Rules will set out in relation to fitness to practise hearings before Foster Care Workers’ Tribunal-
  1. The procedure in preparation for the hearing, cp. SWR 2018, Sched. 2, Part 3, s. 10.
  2. The procedure during the hearing, cp. The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, s. 10-11,(https://www.hcpc-uk.org/globalassets/resources/legislation/consolidated-fitness-to-practise-rules.pdf) The Nursing and Midwifery Council (Fitness to Practise) Rules 2004, Part 5, s. 19-24.(https://www.nmc.org.uk/globalassets/sitedocuments/legislation/legislation-updated/fitness-to-practise-rules-2004-consolidated-text.pdf)
  3. The powers of the Tribunal if it finds that the fitness to practise of the foster care worker is or is not impaired, cp. SWR 2018, Sched. 2, Part 3, s. 12.
  4. An exhaustive list of sanctions which the Tribunal may decide to apply at the conclusion of a hearing if it finds that fitness to practice has been impaired, (e.g. caution, restrictions/conditions on working, suspension from working, removal from the register), cp. SWR 2018, Sched. 2, Part 3, s. 13.
  5. Regulations relating to appeals from the Tribunal which shall be to the Employment Appeal Tribunal, cp. SWR 2018, Sched. 2, Part 5, s. 16.
18. The Rules will provide for an Interim Measures procedure where an allegation has been referred to a screener which he or she considers requires reference directly and urgently to the Foster Care Workers Tribunal. The Rules will specify the circumstances in which such a reference may be made and the procedure to be adopted. The Tribunal may decide to conduct a hearing as urgently as convenience and the rules of natural justice permit at which an interim measure may be imposed on the person to whom the allegation relates. The Rules will specify the procedure to be adopted, cp. SWR 2018, Sched. 2, Part 2, s. 8 and Part 3, s. 11. The Rules will provide for a review of interim orders within a prescribed period, cp. SWR 2018, Sched. 2, Part 4, reg. 14.
19. The Rules will provide for a review of conditions or restrictions on practice and suspension orders before the expiry thereof, cp. SWR 2018, Sched. 2, Part 4, s. 15.
20. The Rules will specify powers to require disclosure of information for the purpose of assisting the Foster Care Workers’ Tribunal in carrying out functions in respect of fitness to practise, cp. HSWP Order 2002, s. 25.
21. There will be automatic removal from the register if a foster care worker has been convicted of a listed offence without need for a hearing by the Tribunal but a foster care worker may appeal to the Employment Appeal Tribunal against automatic removal, cp. SWR 2018, s. 26-27, see Sched. 3 for listed offences.
22. It shall be unlawful for an employer to dismiss or impose a detriment (whether by act or omission) on a foster care worker over an allegation that, or which amounts to an allegation that, the worker is unfit to practice unless this is based upon a finding of the Tribunal.
23. It shall be a legal requirement that foster care workers are paid during any fitness to practice hearings until the conclusion of the Tribunal proceedings.

PART TWO: EMPLOYMENT RIGHTS

1. 1. In relation to foster care workers, the Act will amend the definition of “worker” and “employee” in the relevant employment rights statutes (e.g. the Employment Rights Act 1996, the Equality Act 2010, the Trade Union and Labour Relations (Consolidation) Act 1992, etc.) so that foster care workers, irrespective of the terms and conditions and any contractual or other provisions under which they are engaged, will be entitled to those rights currently accruing to limb b workers. Thus s.230(3) of the Employment Rights Act 1996 shall be amended by adding at the end after s.230(3)(b):
    1. (c) a fostering agreement under which the individual provides foster care for a fostering service provider.’
  2. Similarly, the Act would amend s230(4) of the Employment Rights Act 1996 such that it reads:
    - (4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.
    - (4A) In this Act “employer”, in relation to a foster carer, means:
      1. Every person or entity who engages or engaged the foster carer;
      2. Every person or entity who substantially determines the terms on which the foster carer is engaged at any material time.
  3. The Act would similarly amend the definitions of “worker”, “employee”, and “employer” in the cognate legislation.
  4. In some cases the particular nature of foster care work might necessitate modifications to the rights which normally accrue to limb b workers (e.g. working time), and the extensions of rights which normally accrue to employees (e.g. unfair dismissal and statutory sick pay). The precise modifications to the limb b workers rights regime, for the purposes of foster care employment rights, shall be subject to the agreement of the Foster Care Workers Bargaining Council (see Part Three below).
  5. The Act will make provision for the payment of Statutory Sick Pay in specified circumstances.
  6. The Act will make provision for payment of an allowance in between fostering engagements under specified conditions.

PART THREE: SECTORAL COLLECTIVE BARGANING

1. 1. 1. A Foster Care Workers’ Bargaining Council shall be appointed by the Secretary of State for Education to conduct collective bargaining with a view to determining minimum terms, conditions and other standards to apply to all foster care workers and those who engage them (hereinafter referred to as employers).
    2. The Foster Care Workers Bargaining Council shall consist of an equal number of representatives of foster care workers and representatives of employers, such number to be determined by the Secretary of State but who shall not be less than six on each side.
    3. Those organisations of employers who appear to the Secretary of State to be most representative of the employers in the proposed sector shall nominate the employers’ representatives.
    4. Those organisations of workers who appear to the Secretary of State to be most representative of foster care workers shall nominate the workers’ representatives.
    5. The Secretary of State will appoint to the Foster Care Workers Bargaining Council three independent members from a panel jointly agreed between the foster care workers’ and the employers’ sides. The independent members shall not have the right to vote save in the event that the votes of the foster care workers’ and the employers’ sides are tied.
    6. Members of the Foster Care Workers Bargaining Council shall be appointed for a fixed, though renewable term, and removal should only be permitted by the appointing side unanimously or by a 2/3rds majority. The Secretary of State may only remove a member of a Foster Care Workers Bargaining Council on such grounds as would warrant the removal of Judge under the Senior Courts Act 1981, s 11(3).
    7. The proceedings of the Foster Care Workers Bargaining Council shall be governed by a Procedure Agreement drawn up by the Foster Care Workers Bargaining Council which shall include a Dispute Resolution Procedure.
    8. The Secretary of State may require the Foster Care Workers Bargaining Council to adopt a procedure for the resolution of disputes in the Foster Care Workers Bargaining Councils to resolve the following (or other) disputes:
      1. Refusal by employer or a trade union to engage in collective bargaining in relation to foster care workers in a meaningful, constructive and co-operative way;
      2. Failure by an employer or a trade union to comply with the procedural or substantive terms of a collective agreement relating to foster care workers;
      3. Disputes arising from collective bargaining or the lack of it at employer level.
    9. The Secretary of State may, by regulation, make provision for the involvement of ACAS in the resolution of disputes and/or the CAC. Such regulations may provide for the CAC (subject to appeal to the Employment Appeal Tribunal) to have the power:
      1. To order an offending party to cease and desist the challenged act or omission (whether pending arbitration by the CAC or as a final order) and to make any other form of order it considers appropriate to resolve the dispute, including ordering financial compensation.
      2. To make a report to the Secretary of State for her to make an Order varying the terms and conditions of employment applicable to employers and foster care workers in the sector and, if necessary altering the terms of the Procedure Agreement.
      3. To make a declaration as to the proper interpretation of any agreement.
      4. To receive a complaint from either or both sides of a Foster Care Workers Bargaining Council that a term in a collective agreement affecting an employer(s) or foster care worker(s) in the sector constitutes discrimination or inequality by reference to any protected characteristic. On receipt of an admissible complaint the CAC will have the power to investigate and if discrimination or inequality is upheld, power to order the rectification of any such discrimination or inequality, including a power to require the parties to rewrite the offending terms of the agreement, or, if necessary itself to rewrite the offending terms of an agreement.
    10. A Foster Care Workers Bargaining Council may establish, with the permission of the Secretary of State, sub-sector councils to deal with the different categories of work, employer or foster care worker within the sector.
    11. The Foster Care Workers Bargaining Council may establish sub-committees to deal with particular matters or types of matter.
    12. The primary function of the Foster Care Workers Bargaining Council will be to conduct collective bargaining to set minimum terms of work and minimum conditions under which those engaged in foster care will work.
    13. A Foster Care Workers Bargaining Council may conduct collective bargaining in relation to:
      1. any matter relating to or arising out of work relationships in the sector including, of course, the terms and conditions of the foster care workers (including prospective and retired foster care workers);
      2. any matter agreed by the Foster Care Workers Bargaining Council to be within its jurisdiction.
    14. A Foster Care Workers Bargaining Council shall conduct collective bargaining over the following mandatory matters:
      1. Terms and conditions of employment, including specifically,
      2. Pay, including enhanced, penalty and anti-social hours rates, rates during suspension, stand-by and on-call time, and travel time, and for any other non-specified circumstances, allowances, supplements and bonuses;
      3. Pay progression;
      4. Pay rate variations by reference to categories of work, qualifications and/or experience;
      5. Hours of work;
      6. Working and rest time, breaks and holidays;
      7. Time off in lieu (where work has been done in what would otherwise be a rest period);
      8. Policies and procedures for the introduction of new techniques, new technology, new equipment, new materials, and substances, and new working practices (including consequential reduction of hours – see above);
      9. Pensions, including employer and foster care worker contributions, and pension fund management, foster care worker representation, rules for investment, and protection of funds;
      10. Non-financial benefits;
      11. Conditions and entitlement to maternity, paternity, parental, bereavement leave and other time off (with or without pay).
      12. Job titles and descriptions;
      13. Strategic and operational issues, including measures with a view to increase in the sector investment, research and development, productivity, efficiency, skills planning, distribution of profit, the allocation of resources that have workforce implications, reorganisation of staff, closure and all issues likely to affect job prospects or job security;
      14. Permitted restrictions on and conditions of use (if permitted at all) of employment agencies and the terms and conditions of agency foster care workers;
      15. Permitted restrictions on and conditions of use (if permitted at all) of non-standard form contracts, such as fixed-term and irregular or flexible hours contracts;
      16. Permitted restrictions on and conditions of use (if permitted at all) of self-employment and ‘letter-box’ companies;
      17. Flexible working;
      18. Measures to protect and promote part-time working for those that wish it;
      19. Policies and procedures for advancing equality, diversity, dignity and respect and for the avoidance and elimination of discrimination; for ensuring the participation of mentally and physically disabled people, black and ethnic minority foster care workers and women; for enforcing equal pay for equal work; and for the elimination of the gender pay gap;
      20. Pay audits for equality purposes;
      21. Time-off for, and encouragement and support for participation in, education, both vocational and unrelated to work;
      22. Policies and procedures for the training, development, progression and promotion of staff and allocation of work;
      23. Policies and procedures for the recognition of qualifications and experience;
      24. Grievance, disciplinary and dismissal (termination of engagement) procedures including appeal procedures (see below);
      25. Recruitment, redeployment, redundancy policies and procedures;
      26. Redundancy consultation procedures;
      27. The provision of information to union representatives;
      28. The protection of trade union representatives and legitimate trade union activities;
      29. Use of internal communications systems by union representatives;
      30. Data collection, use and storage;
      31. Permissible techniques, methods and extent of surveillance of foster care workers;
      32. Intellectual property, inventions and encouragement and use of suggestions by foster care workers;
      33. Measures to protect and enhance health, safety and welfare at work, the appointment of safety representatives, the establishment of safety committees, rights of workplace access for trade union safety officials, procedures for the safe introduction of automation, new techniques, new technology, new equipment, new materials and substances, and new working practices and their safe use thereafter;
      34. The physical and environmental conditions of work;
      35. Measures to diminish adverse impacts on the environment;
      36. Oversight, interpretation and enforcement of agreements reached;
      37. Extension of the application of collective agreements within the sector to other employers and foster care workers within the sector;
      38. Dispute resolution procedures (including oversight of them);
      39. Circumstances in which derogation from sectoral standards may be permitted.
    15. Every collective agreement reached by the Foster Care Workers Bargaining Council will be published on the website of the Foster Care Workers Bargaining Council as a ‘provisional collective agreement’ and reported to the Secretary of State who shall keep a register of such provisional collective agreements and publish them on the website of the Department.
    16. Any person (including the Secretary of State) may make representations about any provision of any such provisional collective agreement within 42 days of publication on the Departmental website. Any such representations as shall be made within that period shall be considered by the Foster Care Workers Bargaining Council within 42 days of the end of that period.
    17. The Foster Care Workers Bargaining Council may thereafter amend any provision of the provisional collective agreement or shall decide not to amend the provisional collective agreement and shall thereafter publish on its website the final version of the collective agreement which it shall report to the Secretary of State who shall, subject to the following section, keep a register of such final collective agreements and publish them on the website of the Department within 42 days of receipt.
    18. The Secretary of State shall have the power, within 42 days of receipt of a final version of the collective agreement and before publication on the Departmental website, to alter or amend any provision thereof on the following grounds only; that the amendment is required:
      1. In the interests of the defence of the realm;
      2. To prevent unlawful discrimination;
      3. To protect health and well-being;
      4. To prevent or diminish the likelihood of public disorder or crime;
      5. To eliminate or diminish a significant risk to the life, health, education of wellbeing of those in foster care;
      6. To prevent catastrophic consequences to the economy of the UK.
    19. In this Part of the Act the expression ‘collective agreement’ shall include any provision or provisions which have been reached by arbitration.
    20. The provisions of any registered final collective agreement shall be binding by law on every employer and on every foster care worker to whom it is addressed and to the extent it is relevant.
    21. It shall be unlawful to require or invite a foster care worker to work on terms or under conditions which are less favourable to them than those in an applicable registered final collective agreement, save where the following conditions are met:
      1. The employer of the foster care worker demonstrates to the satisfaction of the Foster Care Workers Bargaining Council (or on appeal to the CAC) that pressing financial or economic circumstances dictate that labour costs must be reduced for the survival of the enterprise;
      2. The employer of the foster care worker demonstrates to the satisfaction of the Foster Care Workers Bargaining Council (or on appeal to the CAC) that the managers and directors are already, to a greater proportional extent than that proposed for the foster care workers, receiving less favourable terms and are working under less favourable conditions than normal, and that the managers and directors will continue to do so for as long as the foster care workers will work on terms or under conditions which are less favourable to them than those in an applicable registered final collective agreement;
      3. The requirement to work on terms or under conditions which are less favourable to the foster care worker than those in an applicable registered final collective agreement has been agreed with a trade union which represents the majority of the foster care workers in the affected workplace;
      4. The requirement to work on terms or under conditions which are less favourable to the foster care worker than those in an applicable registered final collective agreement has been agreed by the relevant Foster Care Workers Bargaining Council, subject to appeal to the CAC.
    22. Where the conditions in the preceding provision are met, such a variation must be registered with the Department before it may take effect.
    23. A foster care worker may be employed on terms or under conditions which are more favourable to them than those in an applicable registered final collective agreement.
    24. Any dispute as to the applicability or meaning of any registered final collective agreement shall be referred to the Foster Care Workers Bargaining Council from which the registered final collective agreement emanated or, if more than one such registered final collective agreement may be relevant, to each Foster Care Workers Bargaining Council from which each potentially relevant registered final collective agreement emanated for their joint determination. In the event of non-agreement the dispute shall be referred to the CAC the decision of which shall be final, subject to an appeal on fact or law to the Employment Appeal Tribunal.
    25. Any dispute as to the entitlement of any foster care worker(s) to the benefit of any registered final collective agreement shall be referred to the Foster Care Workers Bargaining Council from which the registered final collective agreement emanated for resolution under its disputes procedure. If, for any reason the disputes procedure fails to resolve the dispute it may be referred to the CAC the decision of which shall be final, subject to an appeal on fact or law to the Employment Appeal Tribunal.
    26. The institution and subsequent prosecution (including any appeal) of a complaint under the two preceding sections may be brought by:
      1. A foster care worker to whom the registered final collective agreement is said to apply;
      2. An employer to whom the registered final collective agreement is said to apply;
      3. An official of an organisation of foster care workers or an organisation of employers representing a member or members to whom the registered final collective agreement is said to apply;
      4. The Foster Care Workers Bargaining Council;
      5. The foster care workers side of the Foster Care Workers Bargaining Council;
      6. The employers side of the Foster Care Workers Bargaining Council;
      7. An organisation of foster care workers which is signatory to the registered final collective agreement;
      8. An organisation of employers which is signatory to the registered final collective agreement.
    27. In this Act these words shall have the following meanings –
      ‘Enterprise’ shall include any person or entity who engages foster care workers to carry out the work of foster caring;
      ‘Employer’ includes –
      1. Every person or entity who engages or engaged the foster care worker;
      2. Every person or entity who substantially determines the terms on which the foster care worker is engaged at any material time.
      ‘Foster Care Worker’ shall include individuals engaged by employers to provide foster care, including both primary and secondary carers as well as kinship carers.

John Hendy QC
Old Square Chambers
28 January 2019

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Proposed Foster Care Workers’ Bill

Proposed Foster Care Workers Bill

THE REGULATORY FRAMEWORK

PART ONE: THE REGULATORY BODY

REGISTRATION

TRAINING (See in relation to this HSWP Order 2002, ss.3 and 15; SWR 2018, reg. 20.)

FITNESS TO PRACTICE

PART TWO: EMPLOYMENT RIGHTS

PART THREE: SECTORAL COLLECTIVE BARGANING

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