National Union of Professional Foster Carers v Certification Officer

The absence of a contract between foster carers and fostering providers ordinarily means they are not "workers" for the purposes of the Trade Union and Labour Relations (Consolidation) Act 1992. The established domestic line of authority treating the statutory foster carer agreement as non-contractual remains binding and persuasive. Article 11 rights do not, in the circumstances shown on the material before the tribunal, require reading s.296 of the Act to include non-contractual "employment relationships". Any interference with convention rights would be justified within the State's wide margin of appreciation.

The appellant union applied to the Certification Officer to be entered on the statutory list of trade unions. The Officer refused on the basis that foster carers were not "workers" under s.296 of the Trade Union and Labour Relations (Consolidation) Act 1992 because the foster carer agreement is non-contractual. The union appealed to the Employment Appeal Tribunal. The EAT considered (1) whether foster carers are workers because they work under a contract; (2) whether the refusal engaged or breached Article 11 (and Article 14) of the European Convention on Human Rights; and (3) whether s.296 could be read down under s.3 HRA. The EAT upheld the Certification Officer and dismissed the appeal.

1. Disposition: The appeal is dismissed. The Certification Officer's decision rejecting listing was lawful.
2. On status: The tribunal followed and applied the W v Essex line of authority and related domestic precedents that, on the material before the Officer, the statutory Foster Care Agreement operates within a comprehensive statutory scheme and is not a private law contract. That conclusion is decisive for worker status under s.296 TULRCA and therefore for listing under s.1 and s.3. (See Ground 1 analysis.)
3. On Convention rights: The EAT held that Article 11 could only engage in the present context if there existed an "employment relationship". The court accepted Strasbourg authorities recognise that an employment relationship can exist independently of a contract, but found the available factual material was insufficient to establish such a relationship here. Even if Article 11 were engaged, the refusal to list did not materially interfere with the Appellant's Article 11 rights because voluntary collective bargaining remains available and the statutory scheme for compulsory recognition is justified. The restriction pursues legitimate aims and is proportionate given the State's wide margin of appreciation.
4. On Article 14: The tribunal followed the Court of Appeal's reasoning in Gilham and held that the distinction based on the presence or absence of a contract is not a protected "other status" for Article 14 purposes. Any differential treatment is justified and not manifestly without reasonable foundation.
5. On reading down: The EAT concluded that, even if there had been a Convention breach, it would not be appropriate to read s.296 down to include non-contractual "employment relationships" because the demarcation based on contract is a fundamental feature of the legislative scheme.
6. Practical outcome: Appeal dismissed. Costs and any remittal matters were not material to the principal decision.

• Employment Appeal Tribunal Appeal against Certification Officer's refusal to list the union; permission to appeal granted at first instance. Judgment dismisses the appeal. (See judgment delivered 23 July 2019.)
• Lower decision Certification Officer decision of 10 July 2017 rejecting listing under s.3 TULRCA on basis that foster carers are not "workers" because no contract existed.