United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS HENRIETTA HILL (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors 1st Floor, St James House 7 Charlotte Street Manchester M1 4DZ
For the Respondent	MR RICHARD McMANUS (One of Her Majesty's Counsel) & MS ANNA BICARREGUI (of Counsel) Instructed by: Norfolk County Council Chief Executive's Department Legal Services County Hall Martineau Lane Norwich NR1 2DH

SUMMARY

RIGHT TO BE ACCOMPANIED

The Employment Tribunal did not err in holding that the Claimant, a foster carer, was not a worker within the meaning of the Employment Rights Act 1996 and 1999. Accordingly she could not claim the right to trade union representation pursuant to section 10 of the Employment Rights Act 1999 at a meeting of a Fostering Panel which was to consider withdrawing her approval as a foster parent.

The Employment Tribunal was bound as is the Employment Appeal Tribunal by the judgments of the Court of Appeal in W v Essex County Council [1998] 3 WLR 534 and Rowlands v City of Bradford Metropolitan District Council [1999] EWCA Civ 1116 to hold that the relationship between foster carer and local authority was not contractual. It is prerequisite that a 'worker' as defined in Employment Rights Act 1996 section 230(3) which is incorporated in the definition of 'worker' for the purposes of Employment Rights Act 1999 sections 10 to 12 works under a contract. The Employment Tribunal did not err in holding that the Claimant did not work for the Respondent pursuant to a contract.


 


THE HONOURABLE MRS JUSTICE SLADE DBE

1. This appeal raises the short but important point of whether a foster carer is a worker within the meaning of section 13 of the Employment Relations Act 1999 ('ERA 1999'). The Claimant appeals from the judgment of an Employment Tribunal ('ET') of 11 February 2010 that she was not a worker within the meaning of section 13 of the ERA 1999. The ET held that they did not have jurisdiction to hear her claim that contrary to section 10 ERA 1999 she was unlawfully denied a right to be accompanied by a representative of her choice at a disciplinary hearing and her claim was dismissed. We will refer to the parties by their titles before the ET: Claimant and Respondent.
2. Miss Hill for the Claimant advanced four grounds of appeal:

i) The ET erred in considering themselves bound by W v Essex County Council [1998] 3 WLR 534 ('W') and Rowlands v City of Bradford Metropolitan District Council [1999] EWCA Civ 1116 ('Rowlands') to hold that the arrangement between a foster carer and a local authority was not contractual;

ii) W and Rowlands are in any event no longer good law;

iii) The ET failed to recognise the significance of the Claimant's rights under Article 6 of the European Convention on Human Rights ('ECHR'); and

iv) The ET erred in not concluding that the Claimant was a worker within the meaning of the Employment Rights Act 1996 ('ERA 1996') section 230(3) and therefore under section 13(1)(a) ERA 1999 and/or a home worker under section 13(1)(c) ERA 1999.

Summary Relevant Facts

3. We take the relevant facts from the judgment of the ET:

"5. The Claimant was, until her resignation, a registered foster carer with the Council's Children's Services Department. Following a review held on 3 March 2008, the North-East Fostering Panel recommended to the Council that the Claimant's approval be terminated. Having considered the Fostering Panel's recommendation, the Council proposed to terminate the Claimant's approval.

6. By letter dated 1 May 2008, the Respondent gave the Claimant notice of its proposal to terminate her approval as a foster carer. The Claimant made representations, which were referred to the Fostering Panel for consideration.

7. The Respondent informed the Claimant that her case would be considered by the Panel on 3 May. The Claimant's solicitor argued that the Claimant should have legal representation, which was refused. In the alternative, the Claimant's solicitor stated that, as a worker as defined in the 1999 Act, the Claimant was entitled to be accompanied by a trade union representative.

8. On 3 May, the Claimant attended the hearing with a barrister who made representations to the effect that the Claimant was entitled to legal representation. The Fostering Panel refused the request. It is that refusal which forms the subject of the Claimant's claim."

4. The findings of fact of the ET as to the nature and derivation of the arrangements between a foster carer and a local authority are set out in paragraphs 9 to 17 of the judgment. The ET held:

"9. The relationship between a foster carer and a local authority is heavily regulated and few aspects of the agreement/arrangement between the Council and the Claimant exist outside the statutory framework.

…

10. The first agreement that is entered into is the Foster Care Agreement ('FCA'). That is a generic document. Only one FCA is signed for a period of fostering although FCAs can be updated from time to time and re-signed.

…

14. The terms, but not necessarily the detailed content, of every clause in the FCA is dictated by the 2002 Regulations and the parties are not free to draw up an agreement which does not include all those terms.

…

17. As well as the FCA, the Council has to enter into a foster placement agreement ('FPA') every time it places a child with a foster carer. This is required by Section 34(3) of the 2002 Regulations and the terms of the FPA are governed by Schedule 6 of the 2002 Regulations."

The judgment of the Employment Tribunal

5. The ET at paragraph 48 considered that the case before them turned on the short point of whether Rowlands was binding on them in the circumstances of this case. If it was, the Claimant was not a worker for the purposes of the ERA 1999 and the Tribunal had no jurisdiction to consider her claim.
6. The ET noted in paragraph 51 that the Court of Appeal held in Rowlands that there was no contract between a foster carer and a local authority.
7. The ET rejected the contention that Article 6 of the ECHR affected the construction of 'worker' for the purposes of ERA 1999. They did not accept the submission that any perceived breach of Article 6 by the Respondent refusing the Claimant the right to representation at the hearing before the Fostering Panel could be remedied by classifying the Claimant as a 'worker' so as to give her that right.
8. The ET rejected arguments advanced by Miss Hill who appeared for the Claimant in the ET as she had before us, that Rowlands should not be followed. The ET held:

"58. In those circumstances we can see no basis for the argument that we are not bound by Rowlands; that we can distinguish it; or that the Human Rights Act avails the Claimant."

9. Although they expressed themselves 'not unsympathetic to the Claimant's situation' the ET observed at paragraph 59:

"Had this case been untrammelled by authority, or indeed had Rowlands not been reversed in the Court of Appeal our conclusion might have been different."

The ET held that the decision of the Court of Appeal in Rowlands was determinative against the Claimant of the issue of whether a foster carer was a 'worker'.

10. The ET considered that they were bound by the decision of the Court of Appeal in Rowlands to hold that the Claimant foster carer was not a worker. At paragraph 53 they held:

"The ratio of Rowlands is clear. It could not be more clear. It is on all fours on the particular issue, namely worker status, the same as the issue to be determined by this Tribunal today."

The Statutory Provisions

11. Employment Relations Act 1999

"10(1) This section applies where a worker—

(a) is required or invited by his employer to attend a disciplinary or grievance hearing, and

(b) reasonably requests to be accompanied at the hearing.

(2) Where this section applies the employer must permit the worker to

be accompanied at the hearing by a single companion who—

(a) is chosen by the worker and is within subsection (3),

(b) is to be permitted to address the hearing (but not to answer questions on behalf of the worker), and

(c) is to be permitted to confer with the worker during the hearing.

(3) A person is within this subsection if he is—

(a) employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992,

(b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker's companion at disciplinary or grievance hearings, or

(c) another of the employer's workers.

…

13(1) In sections 10 to 12 and this section "worker" means an individual who is—

(a) a worker within the meaning of section 230(3) of the Employment Rights Act 1996,

…

(c) a home worker,

…

(3) In subsection (1) "home worker" means an individual who—

(a) contracts with a person, for the purposes of the person's business, for the execution of work to be done in a place not under the person's control or management, and

(b) is not a party to a contract relating to that work under which the work is to be executed for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any professional or business undertaking carried on by the individual; and, for the purposes of sections 10 to 12, the person mentioned in paragraph (a) is the home worker's employer."

12. Employment Rights Act 1996

"230(3) In this Act "worker" … means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker's contract shall be construed accordingly."

Submissions of the Parties

The Claimant

Ground 1: The ET erred in considering itself bound by W and Rowlands

13. Miss Hill accepted that the regime for foster carers considered by the ET was largely the same as that considered in W and Rowlands. The only difference was that at least with respect to this foster carer and this local authority there was now an additional discretionary element to their pay. W and Rowlands were not sought to be distinguished by Miss Hill either before the ET or before us on the basis of any difference in the terms relevant to the relationship between a local authority and foster carers.
14. It was submitted on behalf of the Claimant that W and Rowlands should not be followed as the decisions in those cases were reached in entirely different contexts. The issue in W was whether there was a contract between them such as to give rise to liability of the local authority for the acts of the foster carer. The issue of what constitutes a 'worker's contract' was not considered in W. In Rowlands the Court considered whether a foster carer was an employee within the meaning of the Race Relations Act 1976 for the purpose of her complaint against a local authority that she had been discriminated against on grounds of her race in dealing with her application to become a foster carer.
15. Miss Hill pointed out that the central part of the line of authority established by W and Rowlands is derived from Norweb Plc v Dixon [1995] 1 WLR 636 in which the relationship between an electricity tariff customer and a public electricity supplier was held to be governed by statute and not contract. Dyson J (as he then was) recognised that other relationships heavily regulated by statute, such as the employment relationship, were nonetheless contractual.
16. Second, Miss Hill contended that any arrangement whereby an individual undertakes to do work for another party to a contract is a 'worker's contract' within the meaning of the ERA 1996 section 230(3)(b). The definition in that section is deliberately wide.
17. In support of these contentions Miss Hill submitted that the FCA combined with the FPA constituted an express or an implied contract whereby the Claimant undertook to do or perform personally work or services for the Respondent. She relied upon the judgments of the Employment Appeal Tribunal ('EAT') in Cotswold Development Construction Ltd v Williams [2006] IRLR 181 and Yorkshire Window Company Ltd v Parkes [2010] UKEAT 0484_09_2705 to contend that as the Claimant agreed personally to undertake work for the Respondent for which the Respondent was to pay her, on the basis that such work was performed pursuant to a contract, she was a worker for the purposes of ERA 1996.
18. Third the issue of whether there was a legally enforceable contract between the Claimant and the Respondent, which was considered in W, was said by Miss Hill to be not to the point. She contended that what was material in this case was whether there existed between the parties 'the very basic working arrangement required by ERA 1996 section 230(3)(b)'.
19. Fourth, following R (Khadim) v Brent London Borough Council Housing Review Board [2001] QB 955 ('Khadim') the ET should not have considered itself bound by Rowlands to hold that there was no contract between a foster carer and a local authority and accordingly the foster carer was not a 'worker' for the purposes of ERA 1996 section 230(3). This was because, it was said in Rowlands the Court of Appeal had merely assumed that the proposition of law in W was correct and had not heard argument on or considered the point.

Ground 2: W and Rowlands are no longer good law

20. Miss Hill contended that W and Rowlands are no longer good law in holding that the relationship between foster carer and Local Authority is not one of contract. She submitted that the vast majority of workers' contracts nowadays have terms implied into them by statute. The statutory basis for the arrangement does not detract from its proper categorisation as contractual. Accordingly by applying Norweb to the relationship of foster carer and local authority the court in W and Rowlands fell into error.
21. Secondly it was said by Miss Hill that to apply W and Rowlands in this case would have catastrophic effects for the protection of workers. It would mean that those involved in work where there is a high degree of statutory regulation would not have the protection accorded to workers by employment protection legislation.
22. Third, W and Rowlands were decided before the Human Rights Act 1998. There is no indication that Convention issues were considered in Rowlands.

Ground 3: The ET failed to recognise the significance to the meaning of 'worker' for the purpose of ERA 1996 and 1999 of the Claimant's rights under Article 6 of the European Convention on Human Rights

23. Reliance was placed by Miss Hill on the decisions of the Court of Appeal in Kulkarni v Milton Keynes NHS Hospital Trust [2009] IRLR 829 and R (on the application of G) v Governors of X School [2010] IRLR 222 to contend that as in those cases Article 6 gave the Claimant the right to representation in disciplinary proceedings whose outcome resulted in her being barred from acting as a foster carer. However Miss Hill accepted that the Claimant would have the right to assert her Article 6 rights in a claim for judicial review. Miss Hill contended that the definition of 'worker' should be construed to include foster carers so as to give effect to Article 6 rights.

Ground 4: The Tribunal erred, overall, in not concluding that the Claimant was (i) a worker under s.230(3) ERA 1996 and therefore under s.13(1) ERA 1999 and/or a home worker under s.13(1)(c) of ERA 1999

24. No separate argument was advanced under this ground of appeal.
25. Miss Hill accepted that the EAT in North Essex Health Authority v David-John [2004] ICR 112 held that the relationship between a general practitioner and a health authority was governed by statute. The obligations arising from the relationship were statutory rather than contractual.

The Respondent

26. Richard McManus submitted that the issues in this appeal are determined against the Claimant by Rowlands. He advanced seven propositions in support of this position:

i) Most of the important terms of the relationship between foster carer and local authority are determined by statute. The relationship is not one of contract. Reliance was placed on the dictum of Dyson J in Norweb;

ii) Both W and Rowlands apply in the context of this appeal. It is immaterial that in those cases the issue of the nature of the relationship between a foster carer and a local authority arose in a different context;

iii) The issue in this appeal as to whether the relationship between foster carer and local authority is contractual has been decided by the Court of Appeal in Rowlands;

iv) This case is indistinguishable from W and Rowlands;

v) The issue of the legal nature of the relationship between a foster carer and a local authority was considered in Rowlands. The point was conceded in argument in Rowlands as W is binding authority in that regard;

vi) As for the contention that W and Rowlands are no longer good law, they were considered and applied in Lambert and another v Cardiff County Council [2007] EWHC 869 (QB) ;

vii) It is not necessary to give an extended definition to the term 'worker' for the purposes of ERA 1996 and 1999 to give effect to Article 6 rights. Such free standing rights can be pursued in judicial review proceedings;

viii) Rowlands does not have catastrophic consequences. It applies where all important terms are governed by statute.

27. Mr McManus submitted that it is clear from the judgment of Stuart-Smith LJ in W at [1998] 3 WLR 534 page 550 paragraph 50 with which Judge LJ and Mantell LJ at page 561 agreed that:

"If there is a statutory obligation to enter into a form of agreement the terms of which are laid down, at any rate in their most important respects, there is no contract: see Norweb Plc v Dixon [1995 1 WLR 636, 643F."

28. It is immaterial that the factual context of W and Rowlands were different from the Claimant's case. The issue of the nature of the legal relationship between a foster carer and a local authority was common to all three cases.
29. It was submitted on behalf of the Respondent that the principle explained in Khadim at page 965 paragraph 33 that a subsequent court is not bound by a proposition of law assumed by an earlier court that was not the subject of argument before or consideration by that court does not apply to Rowlands. The Court of Appeal in that case did consider and set out the reason why the relationship between foster carer and local authority was not contractual. The point was conceded because the decision in W bound the Court of Appeal in Rowlands. The issue was not merely assumed. It was the subject of binding authority.
30. Mr McManus pointed out that W and Rowlands are not outdated. They have been applied recently in the High Court in Lambert.
31. As for using Article 6 as an aid to the interpretation of 'worker' for the purposes of ERA 1996 and 1999, Mr McManus contended that such rights are not confined to workers so defined. Either a person has Article 6 rights or they do not.
32. Mr McManus submitted that Miss Hill was wrong to say that to deny the Claimant foster carer status as a worker within the meaning of ERA 1996 and 1999 would have catastrophic consequences. The relationship between foster carer and local authority was governed by a detailed statutory scheme which gives the carer rights.

Discussion and Conclusion

33. It is a necessary prerequisite of the categorisation of a person as a 'worker' within the meaning of section 230(3) ERA 1996 that their relationship with a putative respondent is governed by contract. If there is a contract between the parties the respective rights and obligations under the contract are examined to determine whether it is a contract of employment or any other contract

"whereby the individual undertakes to do or perform personally any work or services for another party to the contract…"

34. The factual basis for determining whether the relationship between the Claimant and the Respondent was contractual was agreed to be materially indistinguishable from that considered in Rowlands. Although the foster placement agreement is now entered into pursuant to the Fostering Services Regulations 2002 rather than under the Foster Placement (Children) Regulations 1991 in force when Rowlands was decided rightly no point was taken on this as it makes no difference to the issues material to this appeal.
35. The Court of Appeal in Rowlands overturned the judgment of the Employment Appeal Tribunal in holding that the relationship between foster parents and a local authority was not one of contract. Both the Employment Tribunal and the Employment Appeal Tribunal had rejected the Council's submission that the relationship of foster carer and council was not one of contract. They submitted that it was a statutory scheme with features wholly inappropriate to the ordinary concept of contract.
36. Stuart-Smith LJ giving the judgment with which Potter LJ and Brooke LJ agreed pointed out that after the judgment in the EAT in Rowlands the Court of Appeal of whose constitution he was a member in W unanimously held that the relationship between foster carer and local authority was not one of contract. Stuart-Smith LJ referred to paragraph 50 of his judgment in the case in which he said:

"There are, in my judgment, a number of reasons why the plaintiffs' claim in contract must fail. First, although the Specialist Foster Carer Agreement had a number of features which one would expect to find in a contract, such as the payment of an allowance and expenses, provisions as to National Insurance, termination and restriction on receiving a legacy or engaging in other gainful employment and other matters to which the judge referred… I do not accept that this makes the agreement a contract in the circumstances of this case. A contract is essentially an agreement that is freely entered into on terms that are freely negotiated. If there is a statutory obligation to enter into a form of agreement the terms of which are laid down, at any rate in their most important respects, there is no contract; see Norweb Plc v Dixon [1995] 1 WLR 636, 643F."

37. It was in this context that counsel for Ms Rowlands accepted that in the light of the decision of the Court of Appeal in W the Council's appeal was bound to succeed. Stuart-Smith LJ said that that concession was rightly made.
38. The sole issue before the Court of Appeal in Rowlands was whether the EAT had erred in concluding that the relationship between foster carer and local authority was one of contract. It cannot be said that this issue was not the subject of argument or consideration by the court. The contentions on behalf of the appellant local authority were set out. The reasoning upon which he had based his decision in W was set out by Stuart-Smith LJ in Rowlands. The fact that counsel accepted that the appeal was bound to succeed in the light of earlier Court of Appeal authority does not detract from the authority of Rowlands. Unlike the situation contemplated in Khadim the proposition that the relationship between foster carer and local authority was not one of contract was not assumed. It had been the subject of argument as the only issue on appeal. The court was bound by previous authority. In those circumstances the authority of the decision of the court is not undermined by the proper recognition that it is bound by previous authority. To deliver a judgment of authoritative status it cannot be right that the court has to go through the exercise of hearing and giving judgment on full arguments on a point on which they are bound by previous authority to reach a particular decision.
39. The fact that the Court of Appeal reached their decisions in W and in Rowlands that the relationship between foster carers and local authorities was not contractual in different contexts does not affect their relevance and binding effect on the issue in the appeal before us. 'Contract' is not given a different meaning in the ERA 1996 or 1999 from that which it ordinarily bears. There is no basis for making a different categorisation of the relationship between foster carer and local authority in the factual context of W and Rowlands on the one hand and in the appeal before us on the other. The relationship is not governed by contract.
40. Miss Hill correctly contended that 'worker' in ERA 1996 and 1999 is given a broader meaning than 'employee'. However that proposition does not assist in determining whether the ET erred in holding that she was not a worker because her relationship with the Respondent was not one of contract. The authorities illustrating the breadth of the concept of 'performing personally any work or services' within section 230(3) ERA 1996 do not assist in determining whether the relationship between parties is contractual.
41. We do not accept that W and Rowlands are no longer good law. They have been applied relatively recently in Lambert. Relationships of others than foster carers are governed by statute and not by contract. It is not suggested that David-John in which the EAT held that the terms of service of a general medical practitioner are statutory and not contractual is no longer good law. Whether a working relationship is statutory or contractual depends on the facts. There is no reason why all workers should be treated as if they work pursuant to a contract. Nor is there anything new about this distinction. We do not accept the concern expressed by Miss Hill that to apply W and Rowlands as the ET did in this case 'will have catastrophic effects for the protection of workers in this country'. W and Rowlands did not change the law.
42. It is to be noted that the ET concluded their judgment by observing:

"61. …we would beg to point out that it may well be that the whole concept of worker as normally understood, fits uneasily with the relationship of foster carers to a local authority in circumstances when that relationship is heavily prescribed by statute for the protection of children.

62. Tribunals deal with rights of employees and workers. Perhaps the whole area of fostering, insofar as there are disputes and arguments about safeguards, is more appropriately conducted in a different forum."

43. Article 6 of the European Convention on Human Rights does not require or permit a different meaning to be given to 'worker' in ERA 1996 and 1999 from that which it otherwise has. Article 6 ECHR provides in part:

"1. In determination of his civil rights and obligations… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

As is well known, the Strasbourg Court in Albert & Le Compte v Belgium [1983] 5 EHRR 533 held that Article 6 applied to disciplinary proceedings which resulted in Dr le Compte's name being struck from the medical register. The question of whether Article 6 required that a right to representation be given to the subject of disciplinary proceedings was considered by the Court of Appeal in R (on the application of G) v Governors of X School and Y City Council [2010] IRLR 222. Laws LJ held at paragraph 51:

"It is I think clear that Article 6 'civil' does not necessarily entail a right of representation, but may do so. It is well established here and in Strasbourg that the level of procedural protection which the Article guarantees depends on what is at stake."

44. In the context of being barred from practice by disciplinary proceedings, Smith LJ in Kulkarni v Milton Keynes NHS Hospital Trust [2009] IRLR 829 held that Article 6 gave a doctor a right to representation.
45. However in our judgment there is no authority for the proposition that the courts should give effect to Article 6 by deleting from the definition of 'worker' in section 230(3) ERA 1996 or from the definition of 'home worker' in section 13(3) ERA 1999 the requirement that there be a contract between the parties.
46. Despite her valiant efforts we are not persuaded by Miss Hill that the ET erred in law in holding that the Claimant did not work for the Respondent pursuant to a contract and accordingly was not a worker within the meaning of section 230(3) ERA 1996 or a home worker within the meaning of section 13(3) ERA 1999 so as to bring her within the scope of ERA 1999 section 13(1)(a) or (c). They did not err in dismissing her claim of breach of ERA 1999 section 10.
47. The appeal is dismissed.
48. We wish to pay tribute to the Employment Judge and Tribunal members for their clear and well reasoned judgment.