The Employment Appeal Tribunal has given a judgment in NUPFC v Certification Officer (with the Independent Workers of Great Britain, the Secretary of State for Education, the Local Government Association and the European Children’s Rights Unit intervening). This decision considers both the worker status of foster carers as a matter of domestic law and the question of whether Article 11 compliant reading of domestic statute can require an extended definition of worker status.
The National Union of Professional Foster Carers (“the NUPFC”) is a trade union set up to represent the interests of foster carers. The NUPFC applied to be listed as a trade union by the Certification Officer. The Certification Officer is responsible for keeping a list of organisations which constitute trade unions within the meaning of section 1 of the Trade Union and Labour Relations Consolidation Act 1992 (“the 1992 Act”).
The Certification officer refused the request for listing. He did not consider that the NUPFC was a trade union within the meaning of the 1992 Act. Under section 1 of the 1992 Act a trade union is an organisation consisting “wholly or mainly of workers.” The Certification Officer’s decision was that foster carers were not workers within the meaning of the 1992 Act.
The relevant definition of “worker” is found at section 296(1)(b) of the 1992 Act.
Section 296(1)(b) reads as follows:
a worker means “an individual who works, or normally works or seeks to work under a contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his… [emphasis added].”
The Certification Officer considered himself bound by previous case law stating that foster carers did not work pursuant to contracts. As a result, he held that foster carers were not “workers” within the meaning of section 296(1)(b). The NUPFC appealed on two grounds to the Employment Appeal Tribunal (“the EAT”).
Interventions were permitted from the Independent Workers of Great Britain, the Secretary of State for Education, the Local Government Association and the European Children’s Rights Unit.
Ground 1: Do foster carers work under a contract?
The NUPFC argued that the Certification Officer was wrong to find that foster carers did not work pursuant to contracts.
The EAT reviewed the case law. It considered there was a line of authority starting with W v Essex County Council  3 WLR 534 in which the Court of Appeal held that foster carers did not work under contract. This decision had been applied in Rowlands v Bradford MDC  EWCA Civ 1116, Lambert v Cardiff County Council  3 FCR 148 and Bullock v Norfolk County Council UKEAT/230/10. The EAT considered itself bound by this line of authority and, in any case, considered it to be correct.
Ground 2: Was the decision to refuse to list a breach of Article 11 of the ECHR?
In the alternative the NUPFC argued that the Certification Officer’s decision was a breach of Article 11 of the ECHR (read alone or together with Article 14).
Article 11 of the ECHR reads:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State [emphasis added].
The EAT considered that the Certification Officer’s decision did not give rise to any material interference with Article 11 rights. The EAT went on to say if they were wrong about that, they considered any interference to be justified under Article 11(2) meaning there was no breach of Article 11. The EAT rejected the further argument that there was a breach of Article 11 read together with Article 14 (the right not to be discriminated against in the exercise of Convention rights).
The EAT went on to comment on the NUPFC’s argument that, if there was a breach of Article 11, section 296(1)(b) of the 1992 Act could and should be read in such a way as to give effect to these Article 11 rights (in accordance with section 3 of the Human Rights Act 1998). This is commonly achieved by inserted words into statute (if there would otherwise be a breach of Convention rights), but any such amendments must not “go against the grain” of the legislation.
In this case the EAT held that even there had been a breach of Article 11 it would not have been possible to read section 296(1)(b) in such a way as to exclude the requirement that workers work pursuant to a contract. The EAT considered that the “demarcation” adopted by Parliament between those who did and not work under contracts was a fundamental feature of the legislation.
The judgment can be read here.
John Hendy QC, Katharine Newton and Madeline Stanley instructed by Harrison Grant appeared for the Independent Workers of Great Britain (the First Intervenor).
Ben Collins QC and Robert Moretto instructed by the Government Legal Department appeared for the Secretary of State for Education (the Second Intervenor).
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