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The Court of Appeal has allowed an appeal against the decision not to include the National Union of Professional Foster Carers (NUPFC) on the official list of trade unions because it did not consist wholly or mainly of workers in National Union of Professional Foster Carers v Certification Officer.

Section 3 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) provides that a trade union has the right to apply to the Certification Officer to be entered on the list of registered trade unions.  A trade union is defined as an organisation consisting "wholly or mainly of workers" and an individual is a worker if they work, or normally work, or seek to work, under a contract of employment or some other contract to perform work personally.

The NUPFC is a trade union representing the interests of individuals who act as foster carers for children who are "looked after" by local authorities.  NUPFC applied to the Certification Officer to be included on the list of trade unions, and the Certification Officer rejected the application on the grounds that NUPFC was not an organisation consisting "wholly or mainly of workers" within TULRCA.

The NUPFC appealed to the Employment Appeal Tribunal (EAT) arguing that the decision was inconsistent with Article 11 of the European Convention on Human Rights (ECHR) which guarantees the right to freedom of association and the right of workers to form and join trade unions for the protection of their interests.  The EAT dismissed the appeal, then the Court of Appeal allowed it.

The Court held that Article 11 will be engaged in relation to trade union rights when workers are parties to an employment relationship.  In determining whether there is an employment relationship a multi-factorial approach must be adopted.  The Court found that fosters carer who are party to a Foster Care Arrangement (FCA) within the statutory framework, are obliged to look after a child in accordance with a care plan.  There is a complaints system for dealing with complaints against them, they are subject to annual review, required to maintain skills and training, and are remunerated for their service by an allowance, fees and reimbursement of expenses.  The Court concluded that all foster carers who undertake placements under an FCA in accordance with the statutory framework should be regarded as being in an employment relationship with the fostering service for which they undertake the placement.  As a result Article 11 was engaged.

The Court held that the Certification Officer's refusal to list the NUPFC denied the union access to the compulsory recognition procedures, and was therefore an interference with its Article 11 rights.  This interference was not justified.  The Court held that the term "worker" contained in TULRCA could be read down so as to include foster carers who were party to an FCA within the statutory framework, notwithstanding that they did not work under a contract.

Take note:  It seems, following this, that the NUPFC will be included on the list of registered trade unions, but there may also be employment rights implications for foster carers.  Underhill LJ noted that the exclusion of foster carers from employment rights was dependent on the line of authority following from W v Essex (a 1998 case) and that, if this was overturned by the Supreme Court it seemed that full worker or employee status would follow.  Meanwhile Bean LJ pointed out that teachers and nurses were in an analogous position of having their pay and conditions determined by statutory powers, yet enjoyed employment rights.

Following the decision in the NUPFC case, considered in conjunction with the decision in Glasgow City Council v Johnstone (in October 2019) where the EAT held that two foster carers who had signed a written "multi-treatment foster care" agreement were employees of the local authority, it seems that foster carers may be coming closer to obtaining employment rights.