Commentary by Alex Francis
Summary
In National Union of Professional Foster Carers v The Certification Officer [2021] EWCA Civ 548, the Court of Appeal has allowed an appeal brought by the National Union of Professional Foster Carers (“NUPFC”) against the EAT’s decision that the respondent Certification Officer had properly refused to register NUPFC on the official list of trade unions maintained under Part I of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). In doing so, the Court of Appeal held that the Certification Officer’s refusal to place NUPFC on the official list was in breach of NUPFC’s right to freedom of assembly and association under Article 11 of the European Convention on Human Rights.
Background
An association intending to represent foster carers applied to the Certification Officer to be entered on the list of trade unions maintained under Part 1 of TULRCA.
The aims of the NUPFC included collective bargaining about pay and conditions; amending or changing fostering arrangements; providing representation at disciplinary meetings; mediating in disputes; and representing members in tribunal claims or other related court actions.
The Certification Officer rejected the NUPFC’s application. His reasons, in summary, were as follows:
- Section 1 of TULRCA defines a trade union as an organisation which consists wholly or mainly of “workers”.
- The definition of “worker” in section 296 of TULRCA requires that the worker be working under a contract.
- In a line of cases beginning with the decision in W v Essex County Council [1999] Fam 90 it had been held that the “Foster Carers Agreement”, which governs the relationship between foster carers and the local authorities or fostering agencies which engage them, does not constitute a contract.
- Accordingly, since the current and intended membership of the NUPFC would wholly or mainly be working under FCAs, it did not qualify as a trade union for TULRCA purposes.
The NUPFC appealed to the EAT under section 9 of TULRCA. That appeal was dismissed, in summary on grounds that:
- the Certification Officer had been correct to decide, following the W v Essex line of cases, that foster carers did not work under a contract, and accordingly that the NUPFC was not entitled to be listed as a trade union; and
- that state of affairs did not give rise to a breach of the Convention rights of the NUPFC or its members.
Issues before the Court of Appeal
In the Court of Appeal the Appellants accepted that the effect of the decisions in W v Essex and Rowlands v City of Bradford Metropolitan District Council [1999] EWCA Civ 1116 was that foster carers operating under the Fostering Service (England) Regulations 2011 (the “2011 Regulations”) do not provide their services under a contract, and that accordingly they are not “workers” for TULRCA purposes (subject to the issues considered below). [1]
Accordingly, the Court of Appeal was concerned only with whether NUPFC’s consequent exclusion from the right to be listed under TULRCA gave rise to a breach of their rights under Articles 11 and/or 14 of the Convention (though in the event it was not necessary to reach a decision on Article 14).
Decision
Referring to the decision of the Grand Chamber of the European Court of Human Rights in Sindicatul “Pastorul Cel Bun” v Romania app. no. 330/09, [2014] IRLR 49, (“the Good Shepherd case”) the Court of Appeal stated that is that Article 11 will be engaged, as regards trade union rights, where workers are parties to “an employment relationship”; and that, in determining whether an employment relationship existed for these purposes the correct approach was to be found in ILO Recommendation no. 198 (“ILO R198”).
Two points about ILO R198 were considered material:
- Firstly, paragraph 9 ILO R198 provides that the existence of an employment relationship should not turn on how the relationship is characterised by the parties but on an assessment of the objective facts. There is nothing in ILO R198 that suggests that an employment relationship must be contractual, so as to exclude cases where the essential elements of the relationship are prescribed by law or otherwise administratively (as in the case of foster carers).
- Secondly, the facts which should primarily guide the determination of the existence of an employment relationship are those relating to “the performance of work” and “the remuneration of the worker”.
Having considered the position in relation to both “fee-paid” and “allowance only” foster carers [2], the Court of Appeal concluded that all foster carers who undertake placements in accordance with the 2011 Regulations should be regarded as being, during a placement, in this sort of “employment relationship” with the fostering service for which they undertake that placement, such that Article 11 was engaged [95].
The Court of Appeal went on to find that the Certification Officer’s decision to refuse to list the NUPFC constituted an interference with its Article 11 rights in as much as it denied the union official status and deprived it of the right to invoke the compulsory recognition procedure under Schedule A1 of TULRCA. The Court concluded that such interference was not a proportionate means of achieving a legitimate aim. The interference with NUPFC’s Convention rights was not “minimal”. The fact that foster carers could still enjoy other rights was no substitute for the right to form and join a trade union with the official status that listing would bestow. Nor was the opportunity to seek collective bargaining arrangements on a voluntary basis a substitute for the right to seek compulsory recognition under Schedule A1. Although foster carers could still join a listed trade union it remained a significant interference that they were not able to join a union dedicated to their interests [119-137].
The Court therefore made a declaration that for the purpose of section 1 of TULRCA, as applied in sections 2-4, the definition of “worker” in section 296 extends to persons who are parties to a foster care agreement with a fostering service provider, within the meaning of the 2011 Regulations.
Commentary
It is important to emphasise that this case raises a relatively limited and specific issue in relation to NUPFC’s listing as a Trade Union. Its practical effect is that the Certification Officer is now very likely to be obliged to enter NUPFC on the list maintained under TULRCA, assuming all other requirements are met.
As the Appellants have contented throughout, the effect of this decision will not be to require foster carers to be treated as workers for the purpose of TULRCA generally, still less for the purposes of any other legislation in the employment field.
As to the status of foster carers more generally, it is interesting to note the comments made by Bean LJ in a short Judgment at [153-155]. In particular, having described the ratio in W v Essex as “puzzling”, he suggests that it may require reconsideration, either by the Supreme Court or by Parliament.
In a similar vein, Underhill LJ (who gave the leading judgment) said this at [154]:
Despite what I have said about the effect of this decision being limited to trade union rights, and only those which are protected by article 11, it will be appreciated that the exclusion of foster carers from employment rights more generally is dependent on W v Essex County Council and the cases following it. That line of authorities turns entirely on the question whether the relationship between foster carers and the fostering services is to be characterised in law as contractual: that is a binary legal question and takes no account of the peculiarity of the role itself. If they were to be overturned by the Supreme Court it seems that full worker or employee status would necessarily follow notwithstanding the Secretary of State’s strong view that this was undesirable. I express no view about the likelihood of that occurring, but I note what Bean LJ says in his judgment; and the decision of the EAT in Glasgow City Council v Johnstone shows how thin the relevant distinctions may be. The Government may wish at least to consider whether it would make sense for it to consider seeking now to introduce bespoke legislative provision for the position of foster carers, which would either preserve the present exclusion or provide for rights appropriate to their very unusual role.
Although obiter it will be interesting to see whether the Government responds to that suggestion.
[1] NUPFC did, however, reserve the right to argue in any appeal to the Supreme Court that foster carers work under a contract (which, for the purposes of the issues in this case include “limb b” contracts: see 296(1)(b) TULRCA).
[2] See [48]-[52] for an overview of the different fee arrangements that exist in respect of foster care.
