Appeal Court confirms that foster carers can unionise

19 April 2021

While at least two established trade unions, the GMB and the Independent Workers Union of Great Britain (IWGB), have foster carers as members, there is no trade union exclusively for such carers.

The question before the Appeal Court, in The National Union of Professional Foster Carers v the Certification Officer, was whether this situation should be remedied after an association intending solely to represent foster carers applied to the Certification Officer.

It asked to be entered on the list of trade unions maintained under Chapter I of Part 1 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The National Union of Professional Foster Carers (NUPFC) was, the Court noted, apparently limited to six officers but it hoped to attract a substantial membership once it was listed.

Chairman Robin Findlay told the Certification Officer that he wished to confirm the union’s formal status before recruiting but that over 500 foster carers had already expressed an interest in joining.

Having examined the plea that the inability of foster carers to form listed trade unions would give rise to a breach of Article 11 of the European Convention on Human Rights (ECHR), the Court decided to allow the appeal.

It declared that the definition of “worker” in s.296 (1) of the 1992 Act 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 Court noted that, while this probably meant that the Certification Officer would have to accept the NUPFC, the new union would still have to meet the other requirements for entry on the official list. The full text of the ruling can be found here.

Kenny Millard, chairman 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”.

The parties have until 4pm on 30 April 2021 to make any application to the Court of Appeal for permission to appeal to the Supreme Court.

Lord Justice Underhill said: “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.”