The question of who is classified as a “worker”, and in what context, has received much media attention of late. Recently, the Supreme Court decided that drivers working via a ride-sharing platform were workers and therefore benefit from some employment rights.

The term “worker” is also used in trade union legislation. In order to be officially registered by the Certification Officer, a union must represent workers. The Court of Appeal (CA) has now ruled that the National Union of Professional Foster Carers (NUPFC) should be included in the official list of trade unions as foster carers are workers for this purpose. The CA held that the previous exclusion of the NUPFC from this list was a breach of their human rights.

The Certification Officer had excluded the NUPFC as it considered foster carers could not be classified as “workers”. The Trade Union Law Reform (Consolidation) Act 1992 requires that a trade union consist wholly or mainly of workers. Under this Act, an individual is a worker if they work, normally work, or seek to work under a contract of employment or any other contract to perform work personally.

In its 1993 ruling in W v. Essex County Council, the CA held that foster carers did not have a contract with the local authority at all as their relationship is governed by statute and foster care agreements. On that basis, foster carers were not classified as workers and therefore did not meet the statutory requirements for the NUPFC to be included on the list of trade unions.

The CA in the NUPFC case noted they were bound by the 1993 ruling. However, it also had to consider whether any rights under the European Convention on Human Rights (ECHR) had been infringed as a result of the NUPFC not being included on the list of trade unions.

The CA focused on Article 11 (freedom of assembly and association). Article 11 is engaged in trade union scenarios when workers are parties to “an employment relationship”. The CA noted that an employment relationship under the ECHR is broadly interpreted and there does not need to be a contract between the parties. It therefore decided that Article 11 did cover foster carers and so the NUPFC. In coming to this decision, the CA had regard to the fact that:

  • foster carers were obliged to look after a child in accordance with a care plan;
  • they had a complaints system for complaints against them;
  • they were subject to annual review;
  • they required skills and training;
  • they were remunerated with an allowance and expenses; and
  • the quasi-parental nature of their work was not relevant.

Having decided that Article 11 applied, the CA considered whether there had been unlawful interference with an ECHR right i.e. interference which is not justified by having a legitimate aim and being proportionate.

The CA went on to rule that a trade union would be seriously inhibited in exercising its core functions if not listed. Registration on the list of trade unions is an essential step enabling unions to seek compulsory recognition. Therefore, the exclusion of a trade union from access to the scheme maybe a breach of Article 11.

The CA further concluded that the refusal to list the NUPFC was not justified. The distinction between workers who did or did not have a contract of employment was not a legitimate factor in justifying the exclusion of trade unions from the list. The fact that the foster carers were still able to enjoy other rights was not a proportional substitute for the right to form and join a trade union with the official status that listing grants.

In order for the NUPFC to be included on the list, the definition of worker under the statute needed to be read in a manner consistent with the ECHR. To do this, the CA declared that the term “worker” under the statute should be read as applying to those foster carers who are party to a foster care agreement. As a result of this ruling, the NUPFC will most likely be included on the official list of trade unions going forward. The employment law developments following this decision are likely to be wider reaching than just their trade union rights. The CA contrasted the position of foster carers with that of teachers and nurses whose pay and conditions are also determined centrally, but who enjoy employment rights. This suggests a future where some foster carers could also be granted worker or even employment rights.