Foster Panel Chair an Independent Officeholder, Not an Employee

The distinction between an independent officeholder and an employee could hardly be more important but is sometimes difficult to discern. That was certainly so in the case of a woman who served for many years as an independent chair of a local authority’s fostering panel.

After her appointment was terminated, the woman lodged an Employment Tribunal (ET) complaint against the council, alleging unfair dismissal and breach of contract. The council denied her claims and, at a preliminary hearing, asserted that the ET had no power to hear her case in that she was not an employee.

Ruling on the matter, the ET found that the independent nature of her appointment did not preclude her from being the council’s employee. She was subject to regular performance reviews and tax was deducted at source from her attendance fees and expenses claims. The council provided her with the equipment needed for her work; she was expected to undergo training and she was obliged to provide her services personally, in that there was no suggestion that she could arrange a substitute to perform her role.

On the other hand, she did not receive holiday or sick pay and was free to give up her appointment at any time. She received fees, rather than a salary, and was not integrated into the council’s employment structure. She was at liberty to, and did, undertake similar roles with other local authorities. There was an expectation that she would attend a certain proportion of panel meetings, but she was under no obligation to do so. She had provided no evidence of the council taking action against her or any other panel member in respect of non-attendance.

Overall, the ET found that the mutuality of obligation between her and the council, and the level of control that the council exerted over her, were insufficient to give rise to an employer/employee relationship. She was properly viewed as an independent officeholder. Her lack of employment status meant that her claims had to be rejected for want of jurisdiction.