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Foster Carers: worker status under Art 11 ECHR

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Are foster carers 'workers' for the purposes of trade union listing (and recognition)?

Yes, held the Court of Appeal in NUPFC v Certification Officer, upholding an appeal by the National Union of Professional Foster Carers that the Certification Officer's refusal to place it on the official list of trade unions maintained under Part I TULRCA 1992 was a breach of Article 11 of the ECHR, freedom of assembly and association.

The Certification Officer's refusal was based on previous authority to the effect that as the union's membership 'foster carers' were not 'workers', it could not be listed as a union. The case considered carers working in England under foster care agreements 'FCAs' drawn up under the Fostering Service (England) Regulations 2011.

The decision to refuse to list the NUPFC as a trade union interfered with the union and its members' freedom of association, so was a breach of Article 11 which was not justified. The court held that s1 TULRCA should be read so as to extend the definition of 'workers' to persons who are parties to FCAs under the 2011 regulations, even though they don't work under contracts. The court also noted that the NUPFC could apply for certification as an independent trade union and compulsory recognition agreements, but the judgment is limited to meaning that foster carers are to be regarded as 'workers' only for these specific purposes so as to ensure their Article 11 rights. The court suggested that the situation might require a review of foster carers' status by the Supreme Court or that the government might consider bespoke legislation for them.

Thanks to Ed McFarlane of Law at Work for preparing this case summary.