Employment Appeal Tribunal Hears Leapfrog Application in Oni and Others v London Borough of Waltham Forest and Others
- TMP Solicitors
- Sep 23
- 3 min read
Updated: Nov 3
15 October 2025
We have received the outcome of the Oni leapfrog application to the Supreme Court. Whilst His Honour Judge Tayler refused the application, he recognised that the appeal involved a point of general public importance. He has ordered that the appeal be heard in full in the Employment Appeal Tribunal. He said that after the full hearing in the Employment Appeal Tribunal, the leapfrog application may be considered again. The full hearing in the Employment Appeal Tribunal will provide an opportunity to analyse the points of law in the appeals and to give a more fully rounded consideration of whether a leapfrog to the Supreme Court is appropriate.
This outcome, although disappointing as it delays the inevitable, reflects the importance of the legal issues raised in this case and the wider public interest in securing timely and authoritative guidance from the highest UK court. The decision does not determine the merits of the dispute. It enables the parties to continue pursuing the challenge to overturn the Court of Appeal's decision in W v Essex County Council [1999] Fam 90, which held that the claimants were neither employees nor workers because they did not work pursuant to contracts. If that had not been the case, the Employment Tribunal in Oni would have found that they were workers.
24 September 2025
The Employment Appeal Tribunal convened on Wednesday, 24 September 2025, to consider the leapfrog appeal from the Employment Tribunal to the Supreme Court brought by three foster carers in the matter of Oni and others v London Borough of Waltham Forest and others. The EAT has never before certified a case as suitable for a ‘leapfrog’ to the Supreme Court without first considering and determining the appeal itself. The preliminary hearing was presided over by His Honour Judge James Tayler and attended by legal representatives for the claimants and respondents, as well as counsel for the Secretary of State for Education and three local authorities.
This is a case about the working rights of foster carers. By a judgment sent to the parties on 21 January 2025, EJ Crosfill, sitting at East London Employment Tribunal, determined that W v Essex County Council [1999] Fam 90 compelled him to find that the relationship between the Claimants (“Cs”) 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. However, the Employment Tribunal 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 are appealing the decision to allow the discrimination and whistleblowing claims.
In her submissions for the foster carers, Rachel Crasnow KC emphasised that foster carers have been paralysed to exercise their rights and urged that the Employment Appeal Tribunal cannot allow this situation to continue.
Robert Moretto, Counsel for the Secretary of State, accepted that only the Supreme Court can overturn W v Essex, but said that the leapfrog application to the Supreme Court was premature and the appeal must be considered by the Employment Appeal Tribunal first.
This case has significant implications for foster carers nationwide, potentially affecting rights to the 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.
His Honour Judge Tayler has reserved his decision on leapfrog to the Supreme Court, and the parties will receive the outcome in due course.
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