National Union of Professional Foster Carers v The Certification Officer

The Court of Appeal allowed the appeal and held that article 11 ECHR (freedom of association, including the right to form and join trade unions) is engaged in respect of foster carers who provide services under a foster care agreement made in accordance with regulation 27(5) of the Fostering Service (England) Regulations 2011. The court concluded that the domestic statutory definition of "worker" in section 296(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, read with section 1, must be read down under section 3 of the Human Rights Act 1998 so as to include persons who are parties to such a foster care agreement for the purposes of sections 2–4 of the 1992 Act.

The principal legal reasoning was that (i) foster carers who undertake placements under the statutory fostering framework fall within the scope of article 11 if they perform services and receive remuneration or an allowance; (ii) refusal to list a trade union whose membership is wholly or mainly foster carers working under such agreements interferes with the union's article 11 rights because listing confers practical "official status" and (where independent) access to the Schedule A1 compulsory recognition procedure; and (iii) the interference was not justified: the Secretary of State’s concerns for child welfare and the desirability of a uniform ‘‘contract’’ criterion did not outweigh the article 11 interest, and a narrower reading (by reading down) was possible and required to secure Convention compatibility.

This appeal concerned an application by a fledgling association, the National Union of Professional Foster Carers (NUPFC), to be entered on the official list of trade unions maintained under Part I of the Trade Union and Labour Relations (Consolidation) Act 1992. The Certification Officer refused the application on the ground that the organisation did not consist wholly or mainly of "workers" as defined in section 296(1) of the 1992 Act because foster carers provide their services under statutory foster care agreements that the courts had treated as non-contractual (the W v Essex line of authorities).

Procedural history: the Certification Officer rejected the application (decision dated 10 July 2017). The NUPFC appealed to the Employment Appeal Tribunal (EAT), which dismissed the appeal on 23 July 2019, concluding that W v Essex remained binding and that no Convention breach arose. The NUPFC appealed to the Court of Appeal.

Nature of claim and relief sought: the appellant sought to quash the Certification Officer’s refusal (appeal under section 9 of the 1992 Act) or, in effect, to secure a Convention-compatible interpretation under section 3 of the Human Rights Act 1998 so that the definition of "worker" would include foster carers for purposes of listing under sections 2–4.

Issues framed by the court: (i) whether article 11 ECHR was engaged by foster carers working under foster care agreements; (ii) whether refusal to list a foster-carer trade union constituted an interference with article 11 rights (including practical exclusion from the Schedule A1 compulsory recognition machinery); (iii) if there was interference, whether the restriction was justified in a democratic society; and (iv) whether the domestic statutory definitions could be read down under section 3 HRA to avoid incompatibility.

Analysis and reasoning: the court applied Strasbourg authority (in particular the Grand Chamber’s reasoning in Sindicatul “Pastorul Cel Bun” v Romania) and international guidance in ILO Recommendation No.198 to assess whether foster carers fall within the scope of article 11. The court concluded that (a) foster carers who undertake placements under the 2011 Regulations perform services for and under the direction of a fostering service and normally receive remuneration or an allowance such that article 11 is engaged; (b) the refusal to list a union composed mainly of such foster carers interferes with the union’s article 11 rights because listing confers practical status and access to Schedule A1 compulsory recognition; (c) the justifications advanced (maintaining a domestic distinction based on contractual status and protecting the welfare of foster children) did not outweigh the interference: the alleged risks to children did not realistically follow from the right to listing alone, and the statutory contract criterion could not be shown to be a legitimate and proportionate basis for denying listing; and (d) accordingly, section 296(1) could, for the limited purpose of sections 2–4, be read down under section 3 HRA to include persons who are parties to a foster care agreement under regulation 27(5) of the 2011 Regulations.

Outcome and remedy: the Court of Appeal allowed the appeal, made a declaration that for the purpose of sections 2–4 of the 1992 Act the definition of "worker" in section 296(1) extends to persons party to a foster care agreement within regulation 27(5) of the 2011 Regulations, and remitted the matter to the Certification Officer to determine whether the appellant should be entered on the list.

Appeal allowed. The Court held that article 11 ECHR is engaged for foster carers who provide services under foster care agreements made under regulation 27(5) of the Fostering Service (England) Regulations 2011, that refusal to list a union of such carers interferes with article 11 rights (notably by denying practical official status and access to Schedule A1), and that the interference was not justified. Section 296(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 must be read down under section 3 of the Human Rights Act 1998 so as to include such foster carers for the purposes of sections 2–4; the matter was remitted to the Certification Officer to determine listing.

The appellant applied to the Certification Officer (decision refusing entry dated 10 July 2017). The NUPFC appealed to the Employment Appeal Tribunal (Choudhury P, McArthur and Tatlow), which dismissed the appeal on 23 July 2019. The matter then proceeded to the Court of Appeal, which delivered judgment on 16 April 2021 ([2021] EWCA Civ 548).