National Union of Professional Foster Carers v The Certification Officer

For the purposes of article 11 of the Convention, an employment relationship may exist without a contract. Its existence is determined objectively and on a multi-factorial assessment of the work, remuneration, supervision and other circumstances. Foster carers operating under statutory foster care arrangements fall within that concept during placements.

Refusing to list a foster carers’ trade union interferes with article 11 because listing provides official status and access to the statutory compulsory-recognition scheme. The distinction between contractual and non-contractual workers was not justified in this context. Concerns about preserving the familial character of fostering did not outweigh the interference. Under section 3 of the Human Rights Act 1998, the statutory definition of worker could be read compatibly for the purposes of sections 2–4 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The National Union of Professional Foster Carers applied to the Certification Officer for entry on the list of trade unions. The application was rejected because foster carers worked under foster care agreements which, under the existing domestic authorities, were not contracts. The Employment Appeal Tribunal dismissed the appeal on 23 July 2019.

Before the Court of Appeal, the Union accepted that the domestic contractual issue was governed by W v Essex County Council. It argued instead that exclusion from listing breached articles 11 and 14 of the Convention and that the statutory definition of worker should be read compatibly under section 3 of the Human Rights Act 1998. The central issues were whether article 11 was engaged, whether refusal of listing constituted an interference, and whether that interference was justified.

1. Appeal allowed. Underhill LJ gave the leading judgment, with Bean LJ and Green LJ agreeing. The Court declared that, for the purposes of sections 2–4 of the Trade Union and Labour Relations (Consolidation) Act 1992, the definition of worker in section 296(1) extends to persons who are parties to a foster care agreement under regulation 27(5) of the Fostering Service (England) Regulations 2011.
2. Article 11 is engaged where the relationship is an employment relationship. The concept is autonomous for Convention purposes and need not be contractual. It requires an objective, multi-factorial assessment, guided primarily by the facts concerning performance of work and remuneration. Foster carers provide a service to the fostering service, work within care plans, and are subject to supervision and ultimate control. Their quasi-parental role, autonomy in daily decisions, and lack of fixed hours do not prevent an employment relationship.
3. The fee paid to most foster carers is remuneration for their work and skill. The position of allowance-only carers was less certain, but the exceptional and continuous nature of fostering, together with the fact that most carers receive remuneration, supported treating all foster carers undertaking placements under the statutory framework as being in an employment relationship during the placement.
4. Refusal to list the Union interfered with article 11. Listing is, in practice, a badge of official status. It also determines access to the compulsory recognition machinery in Schedule A1. The existence of voluntary collective bargaining did not answer the interference with access to that statutory scheme.
5. The interference was not justified. No legitimate purpose was shown for excluding non-contractual workers from trade union rights merely to preserve a common contractual definition. Protecting the familial character of fostering was legitimate in general, but listing a foster carers’ union did not itself confer individual employment rights and the evidence did not show a real risk of harm to children. The interference was significant and the competing aims did not outweigh it.
6. Section 3 of the Human Rights Act 1998 permitted the definition of worker to be read down only so far as necessary to secure Convention rights. The matter was remitted to the Certification Officer to determine whether the Union should be entered on the list. There was no order as to costs. Bean LJ separately observed that W v Essex County Council might require reconsideration, but that observation did not alter the decision.

• Court of Appeal (Civil Division): [2021] EWCA Civ 548. Appeal allowed. Declaration made and matter remitted to the Certification Officer.
• Employment Appeal Tribunal: judgment handed down on 23 July 2019. Appeal from the Certification Officer’s refusal to list the Union dismissed.