Bullock v. Norfolk County Council

A person cannot qualify as a worker under section 230(3) of the Employment Rights Act 1996 unless the relationship with the putative respondent is contractual. A statutory scheme governing the relationship may prevent it from being contractual, even where the arrangement contains features commonly found in contracts, such as payment and termination provisions.

The Court of Appeal decisions concerning foster carers remained binding. The broader definition of worker does not remove the contractual prerequisite. Article 6 of the European Convention on Human Rights does not authorise a different construction of worker or home worker for the purposes of the right to be accompanied.

The claimant was a registered foster carer for the respondent local authority. After the authority proposed to terminate her approval, she attended a Fostering Panel hearing and sought representation by a legal or trade union representative.

The Employment Tribunal held that she was not a worker within section 13 of the Employment Relations Act 1999, so it had no jurisdiction over her claim that she had been denied the statutory right to be accompanied. The central issue on appeal was whether the foster-care arrangement was contractual and whether Article 6 required the statutory definition of worker to be extended.

1. Appeal dismissed. The Employment Tribunal had not erred in holding that the claimant was neither a worker nor a home worker for the purposes of the Employment Relations Act 1999.
2. Contractual status is a necessary prerequisite to being a worker under section 230(3) of the Employment Rights Act 1996. Only after that prerequisite is satisfied is it necessary to examine whether the contract is a contract of employment or another contract for the personal performance of work or services.
3. The agreed factual basis was materially indistinguishable from that considered in W v Essex County Council and Rowlands v City of Bradford Metropolitan District Council. Those decisions established that the relationship between a foster carer and a local authority was not contractual where its important terms were imposed by the statutory scheme. The change from the 1991 regulations to the Fostering Services Regulations 2002 did not affect the material issue.
4. The fact that worker has a wider meaning than employee, and that section 230(3)(b) extends to contracts for personal work or services, did not assist where no contract existed. Authorities on the breadth of the personal-service concept did not determine whether the relationship was contractual.
5. W and Rowlands remained good law. The reasoning in Rowlands was not a proposition merely assumed without argument; the contractual issue was the only issue on the appeal and the court was bound by earlier authority.
6. Article 6 did not require or permit the definition of worker or home worker to be altered by removing the contractual requirement. Any Article 6 right to representation could be pursued through the appropriate public-law remedy.
7. The claim under section 10 of the Employment Relations Act 1999 was therefore outside the Tribunal’s jurisdiction.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s judgment of 11 February 2010.
• Employment Tribunal: held that the claimant was not a worker under section 13 of the Employment Relations Act 1999 and dismissed the claim.