National Union of Professional Foster Carers v Certification Officer

A foster carer is not a worker for the purposes of the listing provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 unless the carer works under a contract. Whether a relationship is contractual depends on its particular circumstances. A detailed statutory scheme which dictates its significant terms is a powerful indication against contract, but statutory regulation alone is not decisive.

Article 11 may potentially apply where a non-contractual employment relationship is established on a full factual analysis. However, refusal to list a union does not interfere materially with Article 11 where voluntary collective bargaining and association remain available. In any event, the contractual-worker limitation is justified. A distinction based on working under a contract is not an "other status" for Article 14. Reading section 296 to include non-contractual employment relationships would go against the grain of the legislation.

The appellant union, formed to represent foster carers, applied to be entered on the list of trade unions. The Certification Officer refused the application on 10 July 2017. He held that its members were not wholly or mainly workers because foster carers did not work under contracts.

The union appealed on the contractual issue. It also contended that refusal of listing breached Articles 11 and 14 of the European Convention on Human Rights, and that section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992 should be read compatibly under section 3 of the Human Rights Act 1998. The central issues were whether the established authority on foster care agreements governed the case, whether Convention rights were engaged or infringed, and whether a compliant reading was possible.

1. Appeal dismissed. The Certification Officer was entitled, and bound, to reject listing. On the evidence, the foster care agreement was materially indistinguishable from agreements considered in the W v Essex line of authority. That authority established that the statutory foster care agreement was not a contract between the carer and local authority.

2. The fact that the application concerned foster carers as a class, and that later regulations were in force, did not distinguish the earlier decisions. The statutory scheme continued substantially to dictate the relationship's significant terms. There was no evidence of relevant changes in the appellant's members' agreements. The Tribunal also agreed that W had not misapplied Norweb. Legal compulsion is relevant but not determinative; the question is whether the particular relationship has the freedom characteristic of contract.

3. Article 11 could potentially be engaged if, despite the absence of contract, foster carers were in an employment relationship in the broader Convention sense. That requires a fact-sensitive, multi-factorial assessment, including whether there is remuneration for work. The available material was insufficient to decide that question.

4. There was nevertheless no material interference with Article 11. Foster carers could form associations and unions, join unions, negotiate voluntarily and pursue the appellant's stated aims. Article 11 did not confer a universal or unqualified right to compulsory recognition. If exclusion from listing interfered with Article 11, it was prescribed by law and justified. Parliament could rationally confine listing benefits to unions mainly composed of contractual workers, and protect the welfare of looked-after children. The restriction was limited and proportionate.

5. The Article 14 claim failed because working without a contract was not a personal characteristic or "other status". Foster carers were also not analogous to other care workers, and any differential treatment was justified. Finally, the proposed reading of section 296 to include an employment relationship would go against the legislative grain and was therefore unavailable under section 3 of the Human Rights Act 1998.

• Employment Appeal Tribunal: Appeal from the Certification Officer's decision of 10 July 2017 refusing entry of the appellant's name on the list of trade unions. Appeal dismissed.
• Certification Officer: Held that the appellant was not an organisation consisting wholly or mainly of workers within section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992.