BREAKING NEWS - National Union of Professional Foster Carers v Certification Officer and Intervenors
National Union of Professional Foster Carers v Certification Officer and Intervenors Case Number A2/2019/2314
Updated16 April 2021
THE COURT OF APPEAL PAVE THE WAY FOR FOSTER CARERS EMPLOYMENT RIGHTS
TMP secures a landmark victory at the Court of Appeal for foster carers rights.
The Court of Appeal allowed the appeal of National Union of Professional Foster Carers (NUPFC) against the refusal to enter NUPFC onto the list of Trade Unions.
In 2017 the NUPFC was formed to provide advice and support to foster carers and to bargain collectively regarding their pay and conditions. To be registered, the union had to consist wholly or mainly of workers. The Certification Officer refused to list NUPFC because it considered that foster carers did not work under a contract but were regulated by statute.
In a landmark ruling today the Court of Appeal has treated the recognition of foster carers as workers provided that they are a party to a Foster Care Agreement. This definition of worker only applies for the purpose of Sections 2-4 of the Trade Union and Labour Relations (Consolidation) Act 1992 relating to the list of trade unions and the application to have name entered or removed from the list. This is the gateway to full Trade Union rights.
Lord Justice Underhill giving his lead judgment made an extremely important observation at Paragraph 152 of Judgment when he said that despite what is said about the effect of this decision being limited to trade union rights, and only those rights which are protected by Article 11 of the Human Rights Act 1998 (freedom of assembly and association), it is to be appreciated that the exclusion of foster carers from employment rights is dependent on a case called W v Essex County Council  and other cases following it. Justice Underhill said that if this case was overturned by the Supreme Court it seemed that full worker or employee status would follow notwithstanding the Secretary of State’s strong view that this was undesirable. Lord Justice Underhill said that the Government may wish to consider whether it would make sense for it to consider introducing bespoke legislation for the position of foster carers worker’s rights.
Lord Justice Bean agreed and noted that the case of W v Essex County Council said that there was no contract between the local authority and foster carers which meant that foster carers did not have any employment rights and this position has remained for 20 years. Justice Bean found this puzzling because he said there are other types of work, such as teaching and nursing where pay and conditions are determined nationally pursuant to statutory powers and cannot be varied by the parties. He noted that this case may now require reconsideration either by the Supreme Court or by Parliament.
Robin Findlay for #NUPFC said that he is delighted at this ground-breaking result. He said that it has been a long and hard four year battle through the courts but he always believed that we would win in the end. He said: “I would like to thank my legal team, Rachel Crasnow QC and Rachel Barrett from Cloisters, David Stephenson from Doughty Street Chambers, and Jacqueline McGuigan from TMP Solicitors, for pulling together this successful and complex legal challenge.” … “foster carers deserve to be treated fairly and to have proper recognition for pay and for the crucial role that they play in Society by looking after our most vulnerable children.”
Download Judgement Here
19 June 2020
Hearing: 1 December 2020 time estimate 3 days
TMP is representing National Union of Professional Foster Carers. This appeal is a landmark challenge about the denial of rights to form a trade union for foster carers. It is also challenging the 1998 Court of Appeal decision in W v Essex County Council, that foster carers are not workers.