Employment Cases Update

National Union of Professional Foster Carers v The Certification Officer [2021] EWCA Civ 548

Date published: 04/05/2021

Appeal against the rejection of the NUPFCs application to be entered on the list of trade unions. Appeal allowed.

This appeal was, broadly, about the rights of foster carers to form a trade union. At least two established trade unions have foster carers as members, the GMB and the Independent Workers Union of Great Britain ("the IWGB"), but there is no trade union exclusively for them. The National Union of Professional Foster Carers ("the NUPFC") applied to the Certification Officer to be entered on the list of trade unions maintained by him under Chapter I of Part 1 of the Trade Union and Labour Relations (Consolidation) Act 1992. The application was rejected for the following reasons:

(a) Section 1 of the 1992 Act defines a trade union (so far as relevant for present purposes) as an organisation which consists wholly or mainly of "workers".

(b) The definition of "worker" in section 296 of the Act requires that the worker be working under a contract.

(c) In a line of cases beginning with the decision of this Court in W v Essex County Council [1999] Fam 90 it had been held that the "Foster Carers Agreement" ("the FCA"), which governs the relationship between foster carers and the local authorities or fostering agencies which engage them, does not constitute a contract.

(d) 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 the purpose of the Act.

The NUPFC appealed.

The Court of Appeal allowed the appeal and made a declaration that for the purpose of section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992, as applied in sections 2-4, the definition of "worker" in section 296 (1) extends to persons who are parties to a foster care agreement with a fostering service provider within the meaning of regulation 27 (5) of the Fostering Service (England) Regulations 2011.

Read the full text of the judgment on Bailii or download the judgment by clicking the link below.