Court of Appeal rules foster carers can unionise

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Foster carers are “workers” and have the right to unionise, according to a ruling today by the Court of Appeal.

The Independent Workers’ Union of Great Britain (IWGB) is now calling on Parliament and the Supreme Court to intervene and update legislation in line with the judgment as it fell short of guaranteeing basic conditions for foster care workers and is limited to the right to unionise.

In the National Union of Professional Foster Carers vs the Certification Officer, judges ruled that foster carers were in an employment relationship for the purpose of Article 11 the European Convention on Human Rights.

This allows foster carers the right to join and form a trade union and to collective bargaining. Not being able to join and form a trade union, said the judges, interfered with foster carers’ rights under Article 11 and there was no justification for such interference.

Kenny Millard, chair of the IWGB’s Foster Care Workers Branch, said: “This is a crucial victory for foster care workers across the UK. It is the result of years of union organising and grassroots pressure. The path is clear – we must use this right to trade union recognition by continuing to grow union involvement in the sector.

“Together we’re stronger. The more people that join the Foster Care Workers’ Branch, the more opportunity we’ll have to follow through on the path set by this ruling. This is a massive step in the right direction and is evidence of what can be achieved when workers unite and fight.”

The ruling potentially has far-reaching consequences for children’s social care organised by local authorities and other fostering agencies.

Last year, an employment appeal tribunal in Scotland found that foster carers Jimmy and Christine Johnstone were employees of Glasgow City Council.

Although today’s judgement focused solely on the rights under Article 11, the judges suggested that previous decisions – some made more than 20 years ago – should be reviewed by the Supreme Court.

Lord Justice Underhill said that “for the purpose of section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992, as applied in sections 2-4, the definition of ‘worker’ in section 296 (1) extends to persons who are parties to a foster care agreement with a fostering service provider within the meaning of regulation 27 (5) of the Fostering Service (England) Regulations 2011”.

The judges also stated that “the government may wish at least to consider whether it would make sense for it to consider seeking now to introduce bespoke legislative provision for the position of foster carers, which would either preserve the present exclusion or provide for rights appropriate to their very unusual role”.

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