Bullock v Norfolk County Council
The statutory right to be accompanied to disciplinary or grievance hearings under the Employment Relations Act 1999 applies to workers. In Bullock v Norfolk County Council, the Employment Appeal Tribunal (EAT) considered whether a foster carer was a worker and entitled to the right to be accompanied.
Basic facts
Mrs Bullock was a registered foster carer with the Council’s Children’s Services department. The relationship between a foster carer and the local authority is heavily regulated. In particular, the relationship is governed by a Foster Care Agreement (FCA) which is reached for the period of fostering and a Foster Placement Agreement (FPA) which is reached each time a child is placed with the foster carer.
Following a review on 3 March 2008, the fostering panel recommended that Mrs Bullock be removed from the list of registered foster carers for Norfolk Council.
The Council then wrote to her on 1 May, giving her notice of its proposal to terminate her approval. Mrs Bullock asked the panel to reconsider its decision and it agreed to meet with her on 3 May to hear what she had to say. She requested the right to be accompanied at that meeting by a trade union representative but her request was refused.
Relevant law
Section 10 of the 1999 Act gives a worker the right to be accompanied to a disciplinary or grievance hearing that they have been asked (or required) to attend. Section 13 states that a “worker” is an individual within the meaning of section 230(3) of the Employment Rights Act 1996..
Section 230(3) of the 1996 Act states that a worker is “an individual who as entered into, or works under ... a) a contract of employment or b) any other contract ... to do or perform personally any work or services for another party to the contract”.
Tribunal decision
The tribunal held that they were bound by the Court of Appeal’s decision in Rowlands v City of Bradford MDC, which considered whether a foster career was an employee. In that case the Court of Appeal held that there was no contract between the foster career and the local authority. Consequently the tribunal said it could not hear Mrs Bullock’s case. As there was no contract Mrs Bullock was not a worker as defined under section 230(3) of the 1996 Act.
It also rejected the argument that her right under article 6 (to a fair trial) in the European Convention on Human Rights had been violated because she had been refused the right to be accompanied.
EAT decision
Mrs Bullock argued that her case was different from Rowlands. In particular, she argued that the FPC and FPA amounted to an implied contract which meant she fell within the broader definition of a worker - namely that she was required to perform personally work or services as a foster carer for the Council.
The EAT rejected that argument. They held that in order for a person to be a worker there had to be a contract. Rowlands had considered argument on this and held that although the FPC had features of a contract the form of agreement was governed by statute and therefore there was no contract as per Norweb PLC v Dixon. The fact that there was a broader definition of worker did not assist Mrs Bullock’s case because there was no contract.
As for the article 6 claim, the EAT considered the decision in R v Governors of X school and Y Council and held that in order to give effect to the Article 6 right there was still a requirement that there should be a contract.