In an important judgment, the Court of Appeal has held in National Union of Professional Foster Carers v The Certification Officer and ors that the definition of worker under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) can extend to anyone who is a party to a foster care agreement with a fostering service provider within the meaning of the relevant regulations.

Basic facts

In January 2017, an association intending to represent foster carers applied to the Certification Officer to be entered on the list of trade unions under Chapter I of Part 1 of TULRCA.

Although the then membership of the National Union of Professional Foster Carers (NUPFC) was limited to six officers, it hoped to attract a substantial membership once it had a formal status. To be registered, however, the union had to consist wholly or mainly of workers under section 1. 

Decisions of lower courts

Relying on a line of cases beginning with the 1999 decision of the Court of Appeal in W v Essex County Council, the certification officer rejected the application on the basis that foster carers are not workers. This was because the foster care agreement, which governs the relationship between foster carers and the local authorities or fostering agencies, did not constitute a contract.

The association appealed, arguing that the certification officer had applied the case law wrongly; but if that was wrong, the refusal to list the association as a union was a breach of Article 11 (freedom of assembly and association) of the European Convention on Human Rights (ECHR).

Dismissing the appeal, the EAT held that the certification officer had been correct to decide, following Essex County Council, that foster carers did not work under a contract. Instead, the relationship between the carer and the local authority was governed by statutory responsibilities that had been imposed in order to safeguard and promote the welfare of children as opposed to a contract which could be the subject of collective bargaining. “In those circumstances, it seems to us to be perfectly legitimate and rational not to extend the right of compulsory collective bargaining to that group”. As such, the NUPFC was not entitled to be listed as a trade union under section 2 of the 1992 Act.

Nor did this decision give rise to a breach of the convention rights of the NUPFC or its members as carers already had the right to join a listed trade union, and thereby acquire certain employment rights and protections, as long as they did not form the majority of the membership of that union. 

Decision of Court of Appeal

Upholding the appeal, the Court of Appeal held that it did not make sense to argue that, just because British employment law distinguishes between different kinds of contract, it must be legitimate to exclude trade union rights for workers who do not work under a contract at all.

It pointed out that workers without a contract are in an employment relationship just as much as workers with a contract. Just because the statutory definition distinguishes between different kinds of contract could not be an answer to the question as to why those without a contract should be excluded altogether. If it was justifiable to have higher (employee) and lower (worker) levels of employment protection, as the British system does, there was no reason why that distinction could not be provided for in the case of workers without a contract.

As such, the Court of Appeal held that the definition of "worker" in section 296(1) TULRCA (someone working under a contract) could extend to anyone who was a party to a foster care agreement with a fostering service provider within the meaning of the Fostering Service (England) Regulations 2011.


Although the decision is important, it is also quite limited in scope, so we should not get too carried away. To be registered as a trade union, its members needed to be “workers” and the Court of Appeal held that to prevent registration on the basis that foster carers do not have contracts and are therefore not workers would breach the members’ Article 11 rights. That’s it. The Court of Appeal was quite clear that their decision was not “the thin end of the wedge in forcing open the door to full worker (or indeed employee) status” because that is prevented by existing decisions such as Essex County Council. Only Parliament or the Supreme Court can take action to change it.