This appeal arose from the respondent’s refusal to register the appellant Trade Union as an organisation on the list of Trade Unions. The reason for the refusal was that the members of the Trade Union, namely foster carers, were not wholly or mainly workers within the meaning of Section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992.   The EAT had agreed with the decision of the respondent citing that the relationship between foster carers and local councils were regulated by a ‘foster care agreement’ which was non-contractual and was therefore contrary to any definition of being a worker.   The Union appealed this decision stating that foster carers were in fact workers an also argued that there was a breach of their Article 11 Freedom of Assembly rights under the ECHR.

This case had similar features to that of Glasgow City Council v Johnstone (2020) where it was held by the Scottish EAT that foster carers were workers by examining their contractual relationship.   The approach by the Court of Appeal followed this where it was held that the foster carers who entered into an agreement to be a fee-paid foster carer under the Fostering Services (England) Regulations 2011 did so with the fee being remuneration in the relevant sense.    This meant that Article 11 was engaged vis-à-vis the refusal to be recognised as a Trade Union.    The Court of Appeal went through the particular features of interference into Article 11 but the important feature from a strictly employment perspective was that the Court of Appeal declared that for the purpose of Section 1 of the 1992 Act the definition of worker was to be extended to those provider services under a foster care agreement.  This would have the effect that the respondent would be ‘very likely’ to be obliged to enter the Union onto the maintained list.

Practical Lessons

This follows the Scottish case of Glasgow City Council v Johnstone in demonstrating greater recognition for foster carers in an employment sense.  The difficulty that does arise with foster carers which may come down the line is the nature of the work.   It is generally seen as a vocation which applies 24/7 and the fee is payable as a result of the commitment that has to be made.  It must be asked how far the rights then apply and whether there needs to be minimum wage on a 24/7 basis as well as other rights that may then apply.   The decision to find worker status may in fact lead to more questions than answers.
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2021/548.html