"(1) An organisation of workers, whenever formed, whose name is not entered in the list of trade unions may apply to the Certification Officer to have its name entered in the list. (2) The application shall be made in such form and manner as the Certification Officer may require and shall be accompanied by— (a) a copy of the rules of the organisation, (b) a list of its officers, (c) the address of its head or main office, and (d) the name under which it is or is to be known, and by the prescribed fee. (3) If the Certification Officer is satisfied— (a) that the organisation is a trade union, (b) that subsection (2) has been complied with, and (c) that entry of the name in the list is not prohibited by subsection (4), he shall enter the name of the organisation in the list of trade unions."
"1. In this Act a "trade union" means an organisation (whether temporary or permanent)— (a) which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers' associations; or (b) which consists wholly or mainly of— (i) constituent or affiliated organisations which fulfil the conditions in paragraph (a) (or themselves consist wholly or mainly of constituent or affiliated organisations which fulfil those conditions), or (ii) representatives of such constituent or affiliated organisations, and whose principal purposes include the regulation of relations between workers and employers or between workers and employers' associations, or the regulation of relations between its constituent or affiliated organisations." (Emphasis added)
"(1) In this Act "worker" means an individual who works, or normally works or seeks to work— (a ) under a contract of employment , or (b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his, or (c) in employment under or for the purposes of a government department (otherwise than as a member of the naval, military or air forces of the Crown) in so far as such employment does not fall within paragraph (a) or (b) above. (2) In this Act "employer", in relation to a worker, means a person for whom one or more workers work, or have worked or normally work or seek to work." (Emphasis added)
"(5) if a fostering service provider decide (sic) to approve X as a foster parent they must – (a) give X Notice in writing specifying any terms on which the approval is given, and (b) enter into a written agreement with X covering the matters specified in Schedule 5 (the "
"1. Matters to be recorded (a) The terms of the foster parent's approval. (b) The support and training to be given to the foster parent. (c) The procedure for the review of approval of a foster parent. (d) The procedure in connection with the placement of children and the matters to be included in any placement plan. (e) The arrangements for meeting any legal liabilities of the foster parent arising by reason of a placement. (f) The procedure available to foster parents from making complaints and representations. 2. Obligations on the foster parent (a) To care for any child placed with them as if the child was a child of the foster parent's family and to promote that child's welfare having regard to the long and short-term plans for the child . (b) To give written notice to the fostering service provider without delay, with full particulars, of— (i) any intended change of the foster parent's address, (ii) any change in the composition of the household, (iii) any other change in the foster parent's personal circumstances and any other event affecting either their capacity to care for any child placed or the suitability of the household, and (iv) any request or application to adopt children, or for registration as an early years provider or a later years provider under Part 3 of theChildcare Act 2006 . (c) Not to administer corporal punishment to any child placed with the foster parent. (d) To ensure that any information relating to a child placed with the foster parent, to the child's family or to any other person, which has been given to them in confidence in connection with a placement is kept confidential and is not disclosed to any person without the consent of the fostering service provider. (e) To comply with the terms of any placement plan. (f) To comply with the policies and procedures of the fostering service provider issued under regulations 12 and 13 . (g) To co-operate as reasonably required with the Chief Inspector and in particular to allow a person authorised by the Chief Inspector to interview the foster parent and visit the foster parent's home at any reasonable time. (h) To keep the fostering service provider informed about the child's progress and to notify it as soon as is reasonably practicable of any significant events affecting the child." (Emphasis added)
"Freedom of assembly and association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the Armed Forces, of the police or of the administration of the State." and Art 14, ECHR provides: "
"50. 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 [1997] 2 F.L.R. 535 , 565e-f, 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 W.L.R. 636 , 643f. 51. In S. v. Walsall Metropolitan Borough Council [1985] 1 W.L.R. 1150 the question was whether foster parents were the agents of the defendant council who had placed the child in care. Oliver L.J., with whose judgment Balcombe L.J. agreed, reviewed the statutory provisions which are similar to those relevant in this case. He said, at p. 1154f, that the statute and the regulations "provide a statutory code and they underline the fact that the whole of this area is covered by a complicated and detailed statutory scheme." and later he said, at p. 1155e, that the "relationship between the child and the local authority, and indeed between the child and the foster parents, is one which is regulated . . . simply and solely by the provisions of the statutory scheme."
"117. However, in any event, even if W were not binding upon me, I would respectfully adopt its reasoning. The February 1991 and May 1995 agreements contained primarily provisions required by the respective statutory schemes. Stuart-Smith LJ allowed for the fact that there might be some provisions in the agreement that were not so mandated. These agreements were not private law contracts. The relationship between authority and carers is not regulated by private law, but by the comprehensive statutory scheme, of which these agreements formed part." c. The final case to be considered in this line of authority is Bullock v Norfolk County CouncilUKEAT/230/10 , a judgment of the EAT. There, a foster carer sought to establish that she was a worker within the meaning ofs.230(3) of the Employment Rights Act 1996 ("
"On the information before me it appears that the relationship between foster carers and local authorities continues to be regulated by the Special Foster Care Workers Agreement which has already been examined by the courts. The cases of Rowlands and W (as applied in Bullock) are direct authority for the relationship between foster carers and the local authority not being contractual. Therefore, I remain bound by the existing case law. In those circumstances, I am bound to reject this application for listing."
"section 1(1)(a) of the Employment Act 1990 . In all these cases, a relationship which results from some degree of legal compulsion is nevertheless regarded as contractual, because the parties still have considerable freedom to regulate its incidents. But there are other cases in which a relationship created by legal compulsion is clearly not contractual. Thus a person whose property is compulsorily acquired against his will does not make a contract with the acquiring authority, even though he receives compensation: see Sovmots Investments Ltd. v. Secretary of State for the Environment[1977] QB 411 , 443. In Pfizer Corporation v. Ministry of Health [1965] A.C . 512 the House of Lords held that a patient to whom medicines are supplied under the National Health Service does not make a contract to buy them either from the chemist or the Minister of Health even if he pays a subscription charge. The transaction is sui generis, the creation of statute and not a sale pursuant to a contract. Lord Reid said, at pp. 535–536: "
"In my view the claimant's argument succeeds in its first leg in that there are clear factual differences between the situation in the present case and the situation set out in the previous case law [this was a reference to the W line of authority]. It may very well be the case that if one is looking at a mainstream foster carer then the correct legal analysis is that there is no contractual nexus between the parties. In this case however given the very specialist nature of the Connex NTSC scheme and the many matters in the agreement which are not covered by the statutory scheme that appears clear to me that the parties intended to enter into a contractual relationship over and above the relationship imposed by the statutory scheme and did in fact do so."
"10… the question whether a minister of religion serves under a contract of employment can no longer be answered simply by classifying the minister's occupation by type: office or employment, spiritual or secular. Nor, in the generality of cases, can it be answered by reference to any presumption against the contractual character of the service of ministers of religion generally: see, in particular, Baroness Hale at para 151. The primary considerations are the manner in which the Minister was engaged and the character of the rules or terms governing his or her service. But, as with all exercises in contractual construction, these documents and any other admissible evidence on the party's intentions fall to be construed against their factual background. Part of that background is the fundamentally spiritual purpose of the functions of a minister of religion. … 12 …The question is whether the incidence of the relationship described in those documents, properly analysed, are characteristic of contract and, if so, whether it is a contract of employment. Necessity does not come into it."
"It just feels like I'm living with my family and not with someone who gets paid to look after me."
"55. The Court recalls at the outset that the right to form an association is inherent in the right laid down in Article 11, even if that provision only makes express reference to the right to form trade unions. The most important aspect of the right to freedom of association is that citizens should be able to create a legal entity in order to act collectively in a field of mutual interest. Without this, that right would have no practical meaning."
"140. The question whether the applicant union's members were entitled to form the union raises the issue of whether Article 11 was applicable to them. On this point, the Grand Chamber does not share the Government's view that members of the clergy must be excluded from the protection afforded byArticle 11 of the Convention on the ground that they perform their duties under the authority of the bishop, and hence outside the scope of the domestic rules of labour law. 141. It is not the Court's task to settle the dispute between the union's members and the Church hierarchy regarding the precise nature of the duties they perform. The only question arising here is whether such duties, notwithstanding any special features they may entail, amount to an employment relationship rendering applicable the right to form a trade union within the meaning of Article 11. 142. In addressing this question, the Grand Chamber will apply the criteria laid down in the relevant international instruments (see, mutatis mutandis , Demir and Baykara , cited above, § 85). In this connection, it notes that in Recommendation no. 198 concerning the employment relationship (see paragraph 57 above), the International Labour Organisation considers that the determination of the existence of such a relationship should be guided primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterised in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties. In addition, the ILO's Convention no. 87 (see paragraph 56 above), which is the principal international legal instrument guaranteeing the right to organise, provides in Article 2 that "workers and employers, without distinction whatsoever" have the right to establish organisations of their own choosing. Lastly, although Council Directive 78/2000/EC (see paragraph 60 above) accepts the existence of a heightened degree of loyalty on account of the employer's ethos, it specifies that this cannot prejudice freedom of association, in particular the right to establish unions. … 148. Having regard to all the above factors, the Court considers that, notwithstanding their special circumstances, members of the clergy fulfil their mission in the context of an employment relationship falling within the scope ofArticle 11 of the Convention . Article 11 is therefore applicable to the facts of the case."
"62. The Court reiterates thatarticle 11(2) of the Convention does not exclude any occupational group from the right of association secured under that article (See Sindicatul "
"For the purposes of the national policy of protection for workers in an employment relationship, the determination of the existence of such a relationship should be guided primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterised in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties."
"Financial support is provided by the Directorate through the Foster Care Allowance, details of which are provided separately to each foster carer. Allowances are paid weekly in arrears. Details of other financial arrangements, including the provision of equipment and clothing can be made available on request. Retainer fees are payable to those foster carers who have been asked to hold a vacancy for a specific child by the supervising social worker and those foster carers who hold a vacancy for a child at boarding school or during a period of rehabilitation. Retainer fees are not payable if the foster carer is on holiday or is otherwise unable to take a placement. From the age of 16 most young people will begin a pathway towards semi-independent and independent living. When a young person chooses to remain in foster care financial support can be made available for young people in further education, and this information is outlined in the department's staying put policy."
"40. The government has put in place a National Minimum Fostering Allowance… which each foster parent must receive in addition to any other necessary expense for the care, education and reasonable leisure interests of the child to cover the full cost of caring for the child. Fees may be paid in addition to allowances. Criteria for calculating all fees and allowances must be clear and transparent and applied equally to all foster carers in the service, regardless of whether the child is related to the carer or not, or the placement be short or long term. Benefits and tax 41. The majority of foster parents are registered as self-employed for tax purposes. As foster parents, they receive Qualifying Care Relief that is made up of two parts: i. Tax exemption on the first£10,000 shared equally among any foster carers in the same household. No tax paid on the first£10,000 income from fostering. ii. Tax relief for every week a child is in their care. The amount depends on age (£200 a week for each child under 11 and£250 a week for each child aged 11 or over). 42. Foster parents are entitled to claim means tested welfare benefits if they meet the general eligibility criteria. Income from fostering and foster children are not taken into account for the purposes of assessing benefits. Foster parents can claim child tax credit and child benefit for their own children but not for any foster children. Under Universal Credit, foster parents will have a reduced level of conditionality, designed to recognise their caring responsibilities and the valuable role they play in society."
"28. The Court reiterates that Art 11(1) presents trade union freedom as one form or a special aspect of freedom of association. The words "for the protection of his interests" which appeared in Art.11(1) are not redundant and the Convention safeguards freedom to protect occupational interests of trade union members by trade union action, the conduct and development of which the contracting states must both permit and make possible. A trade union must thus be free to strive for the protection of its members interests, and the individual members have a right, in order to protect their interests, that the trade union should be heard. Article 11 does not, however, secure any particular treatment of trade unions or their members and leaves each state a free choice of the means to be used to secure the right to be heard. 29.The Convention makes no distinction between the functions of a contracting state as holder of public power and its responsibilities as employer. Article 11 is not an exception to that rule. On the contrary, para.2 in fine of this provision clearly indicates that the State is bound to respect the freedom of assembly and association of its employees, subject to the possible imposition of "lawful restrictions" in the case of members of its armed forces, police or administration. Article 11 is accordingly binding upon the "
"36. I am not persuaded that any of the other cases to which Mr Hendy referred extend the right collectively to bargain beyond an employment relationship. In Boots , in the passage I have cited at para [31] above, Underhill LJ stated that the 'essential element' recognised by Demir was a right to bargain collectively with the employer. Unite The Union concerned the State's abolition of a right to bargain collectively which had previously been held by agricultural workers. As Mr Jeans observes the nature of the relationship between the agricultural workers and those with whom there had been negotiation on their behalf was not in issue. … 39. Conclusion I do not consider that, on the findings made by the CAC, the Riders have the right for which the union contends under art 11(1). Neither domestic nor Strasbourg case law supports this contention. Article 11(1) is not engaged in this case."
"59. The applicant has argued that the abolition of the AWB amounted to an interference with its right to engage in collective bargaining, an essential element of the freedom of association accorded to trade unions. The Court is not persuaded by this argument. In Demir , cited above, the Court found an interference with the applicants' trade-union freedom as a result of the absence of legislation necessary to give effect to the provisions of international labour conventions ratified by Turkey and a court judgment annulling the voluntary collective agreement entered into by the applicants on account of that absence. By contrast, in the present case the United Kingdom does not restrict employers and trade unions from entering into voluntary collective agreements. Legislation, in the form of s.179 in particular of the 1992 Act, is in place to govern the enforceability of collective agreements (see paragraph 26 above). Even where the conditions in s.179 are not satisfied, a collective agreement may nonetheless be enforceable in respect of a particular individual where he succeeds in showing that its terms have become incorporated into his employment contract (see paragraph 27 above). Thus the applicant is not prevented from exercising its right to engage in collective bargaining and the facts of the case are far removed from those at issue in Demir."
"38. However, I do not think it would be right to treat the effect of the decision in Demir as being confined to cases where the state itself interferes with the freedom of a trade union to conduct collective bargaining already agreed. The reasoning goes wider than the facts of the particular case. The recognition of "the right to bargain collectively with the employer" as an "essential element" of the rights protected by article 11 means that it is a right of the same status as the more unspecific rights recognised in the earlier cases; and the Court evidently regarded this as a significant development. If the right in question is an essential element of the article 11 right the state may not simply be prohibited from itself interfering with it but may in principle have positive obligations to secure the effective enjoyment of those rights: that is the language of para. 41 of the judgment in Wilson , referred to at para. 31 above (which is clearer than, but to the same effect as, the phrase "both permit and make possible" which appears in the Swedish Engine Drivers decision – see para. 40). The extent of those positive obligations is another matter, which I consider further below."
"45. The structure of that reasoning is not entirely explicit, but it seems to break down into three elements (the second and third being introduced by the words "moreover" and "furthermore"), namely: (1) that the UK has an effective system for giving effect to the results of voluntary collective bargaining; (2) that the UK has a machinery under the 1992 Act for imposing compulsory collective bargaining, and that, although the minimum numbers threshold means that that machinery is not in practice available to agricultural workers, there was no reason to believe that that restriction was unjustifiable; (3) that the union retained the right to advance its members' interests because it had the "right to be heard" – this harks back to the language of the Swedish Engine Drivers and Wilson cases (though these are not explicitly cited) – and that the international instruments did not support the view that "a state's positive obligations under Article 11 extend to providing for a mandatory statutory mechanism for collective bargaining in the agricultural sector". 46. At first sight the third of those points reads like a re-affirmation of the position established by the pre- Demir authorities and would support a reading of Demir which limited its effect to cases of positive interference by the state with voluntary collective bargaining arrangements. I do not however think that that is correct. If that had been the Court's understanding, the multi-factorial approach taken in para. 65 would have been unnecessary: the third point would have been conclusive by itself. There would have been no need for a reference to the UK's margin of appreciation nor to the striking of a fair balance. Nor would there have been any need, in relation to the second factor, to raise the question whether the restrictions which prevented the union being able to access the statutory machinery in the agricultural sector were justifiable. Indeed arguably the conclusion at the end of para. 58 that the complaint "may be said to fall within the scope of article 11", which is the gateway to the remainder of the Court's reasoning, would be falsified. It is necessary to note the three final words of the conclusion in para. 66 – "for agricultural workers": given the broader context to which I have referred, I think they must be read as equivalent to "in the circumstances of the present case". 47. In my view, therefore, the reasoning in the Unite case acknowledges the possibility that the absence or inadequacy of a statutory mechanism for compulsory collective bargaining might in particular circumstances give rise to a breach of article 11. Such a reading is consistent with the logic of the reasoning in Demir itself, as discussed at para. 38 above. It is fair to say that various observations by the Court, and indeed the outcome of the case itself, tend to suggest that complaints based on the denial of a right to compel an employer to engage in collective bargaining may face an uphill struggle; but the point at this stage is simply that the attempt is not excluded in limine ."
"54. My conclusions on this issue are largely determined by what I have already said about the effect of the Strasbourg authorities. It follows from the recognition by the Court in Demir that "the right to bargain collectively with the employer" is an "essential element" of the rights protected by article 11 that a complaint that domestic law does not accord such a right in a particular case will fall within the scope of article 11. But, at the risk of spelling out the obvious, it does not follow from that that article 11 confers a universal right on any trade union to be recognised in all circumstances. It is self-evident that any right to be recognised conferred by domestic law will have to be defined by rules which identify which unions should be recognised by which employers in respect of which workers and for what purposes. To the extent that the rules of any such scheme constrain access to collective bargaining for a particular union (or its members) the constraints will have to be justified by – to use the language of the Unite decision (see para. 66, quoted at para. 44 above) – "relevant and sufficient reasons" and should "strike a fair balance between the competing interests at stake"
"The European and international instruments… do not support [the] view that a State's positive obligations under Article 11 extend to providing for a mandatory statutory mechanism for collective bargaining in the agricultural sector." 42. Ms Emma Waite, Deputy Director of Employment Rights and Enforcement at the Department for Business, Energy and Industrial Strategy, explains in her witness statement the proposals for the new machinery for recognition of trade unions which were first set out in the White Paper, Fairness at Work , published on21 May 1998 . At paragraph 9 she summarises the policy objectives underlying Schedule A1: "9. The changes implemented by way of Schedule A1 to the 1992 Act were envisaged to achieve the following policy objectives, among others: (a) the encouragement of voluntary arrangements for collective bargaining, which were to be given primacy; (b) the avoidance of competing and overlapping collective bargaining arrangements, and 'turf wars' between rival unions; (c) the encouragement of stability and continuity in collective bargaining arrangements; (d) the avoidance of small, fragmented bargaining units; and (e) the grant of greater rights to independent trade unions, as opposed to non-independent trade unions."
"… if derecognition under Part VI were not available there would in my view be a breach of Article 11."
"No restrictions shall be placed on the exercise of these rights [under Art 11(1)] other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."
"60. … the social and political issues involved in achieving a proper balance between the interests of labour and management are of a sensitive nature. The starting point is, therefore, that the United Kingdom enjoys a wide margin of appreciation in determining whether a fair balance has been struck between the protection of the public interest in the abolition of the AWB and the applicants competing rights underarticle 11 of the Convention ."
"54. It is self-evident that any right to be recognised conferred by domestic law will have to be defined by rules which identify which unions should be recognised by which employers in respect of which workers and for what purposes. To the extent that the rules of any such scheme constrain access to collective bargaining for a particular union (or its members) the constraints will have to be justified by – to use the language of the Unite decision (see paragraph 66, quoted at paragraph 44 above) – "relevant and sufficient reasons" and should "strike a fair balance between the competing interests at stake"
"64. If, accordingly, the rights in question fall within the scope of article 11 the UK is under a positive obligation to secure the effective enjoyment of those rights. That does not mean that it is under an obligation to ensure that they are available to all employees in all circumstances, but it does mean that where a legislative scheme is in place it must strike a fair balance between the competing interests and any provision of that scheme which restricts its availability to particular classes of workers requires to be justified, albeit that the state is recognised to have a wide margin of appreciation. The relevant principles are discussed at paras. 33-47 and 54-55 in the judgment of Underhill LJ in Pharmacists' Defence Association Union v Boots[2017] EWCA Civ 66 ,[2017] IRLR 355 , on the basis of Demir and the later ECrtHR decision in Unite the Union v United Kingdom[2017] IRLR 438 ."
"One reason why this would be most undesirable is that, as everyone knows, the role of trade unions and the extent of their rights and liabilities are matters which have long been the subject of keen, sometimes bitter, political debate. The debate still continues, with controversy and discussion at present on the importance and desirability of centralised collective bargaining. Over the decades of this century many changes have been made in trade union legislation, those changes reflecting the views of the government of the day on this sensitive issue. Currently the trade union legislation is mainly embodied in the Act of 1992, as amended by theTrade Union Reform and Employment Rights Act 1993 . That legislation sets out its own balance between the various conflicting interests in this highly contentious area. It cannot be right for the courts, least of all for a judge sitting at first instance, to attempt to re-assess the requirements of public interest in this field, with consequences not only for this one particular association but right across the whole field of trade unionism. I cannot think of a subject where intervention by the judges would be more ill-advised. I hasten to add that, in declining to tread the road Mr. Bragiel mapped out for me, I am not failing to recognise the value properly to be accorded to trade unionism. Indeed, the freedom for a person to form and join a trade union for the protection of his interests is now recognised as, in general, the right of everyone: seearticle 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969). All I am doing is to abstain from upsetting the balance of rights and liabilities established by Parliament in this field."
"… this is a context in which the court should tread with care in case it inadvertently (but impermissibly) interferes in an area which is within the province of the democratically elected legislature. As Lord Nicholls of Birkenhead observed in Ghaidan v Godin-Mendoza[2004] 2 AC 557 , para 9: "all law, civil and criminal, has to draw distinctions."
"109. The effects of a finding that foster carers are workers would be significant. The question of practicality and cost is considered in the paragraphs of Ms Burlington's statement identified above (including, for example, the difficulty of providing for daily breaks). But as or more important are the unquantifiable effects on children. To quote some examples from Ms Willison's statement: "the idea that someone is paid to be interested in them, to show them love and affection, can never sit easily." "
"Some carers are critically aware that employment rights would fundamentally change fostering… We acknowledge that employment rights would, indisputably, bring some benefits to foster carers, not least in basic things such as sickness benefits and protection against dismissal, neither of which is provided for under current arrangements. But they would also bring significant obligations, more oversight and impinge drastically on the independence of foster carers, turning their homes into places of work. And the current helpful tax and benefit arrangements would be most unlikely to be extended to employed carers."
"130. It can therefore be seen that the definition of "worker" which is in issue in the present case is far from unusual. It is also clear that Parliament has used a number of different formulae in order to define the scope of protection of different pieces of employment legislation. It may well be that the line which it has drawn is open to criticism from those who are dissatisfied with the lack of apparent protection for them. For example, they may qualify as "workers" but may be excluded from the definition of "employees" for the purpose of the law of unfair dismissal. Nevertheless, that is the policy choice which the democratically elected Parliament of the United Kingdom has made."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status"
"In order to establish that different treatment amounts to a violation of article 14, it is necessary to establish four elements. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or "other status"
"56. Reviewing these decisions, together with R (Clift) v Secretary of State for the Home Department[2007] 1 AC 484 , I think it can be said (although acknowledging the danger of over-simplification) that prior to the decision in Clift v United Kingdom CE:ECHR:2010:0713JUD000720507 ; The Times,21 July 2010 , the House of Lords had adopted the following position on "other status". (i) The possible grounds for discrimination under article 14 were not unlimited but a generous meaning ought to be given to "other status". (ii) The Kjeldsen test of looking for a "personal characteristic" by which persons or groups of persons were distinguishable from each other was to be applied. (iii) Personal characteristics need not be innate, and the fact that a characteristic was a matter of personal choice did not rule it out as a possible "other status". (iv) There was support for the view that the personal characteristic could not be defined by the differential treatment of which the person complained. (v) There was a hint of a requirement that to qualify the characteristic needed to be "analogous" to those listed in article 14 , but it was not consistent (see, for example, Lord Neuberger's comment in R (RJM) v Secretary of State for Work and Pensions[2009] AC 311 , para 43) and it was not really borne out by the substance of the decisions. (vi) There was some support for the idea that if the real reason for differential treatment was what someone had done, rather than who or what he was, that would not be a personal characteristic, but it was not universal. (vii) The more personal the characteristic in question, the more closely connected with the individual's personality, the more difficult it would be to justify discrimination, with justification becoming increasingly less difficult as the characteristic became more peripheral."
"63. Returning to the list of propositions derived from the House of Lords' decisions which is to be found at para 56 above, it seems to me that the subsequent authorities in the Supreme Court could be said to have continued to proceed upon the basis of propositions (i) to (iii), which have also continued to be reflected in the jurisprudence of the ECtHR. Proposition (iv) lives on, in R v Docherty[2017] 1 WLR 181 , but perhaps needs to be considered further, in the light of its rejection in Clift v United Kingdom : see further, below. The "analogous" point, which features at proposition (v), is reminiscent of the ejiusdem generis argument advanced in Clift v United Kingdom CE:ECHR:2010:0713JUD000720507 ; The Times,21 July 2010 , but not addressed head-on by the ECtHR. That court's answer to the argument was, it will be recalled, to give quite wide ranging examples of situations in which a violation of article 14 had been found. With the continued expansion of the range of cases in which "other status" has been found, in domestic and Strasbourg decisions, the search for analogy with the grounds expressly set out in article 14 might be thought to be becoming both more difficult and less profitable. However, that should not, of course, undermine the assistance that can be gained from reference to the listed grounds, taken with examples of "other status" derived from the case law. It may not be helpful to pursue proposition (vi) abstract; whether it assists will depend upon the facts of a particular case. Proposition (vii) comes into play when considering whether differential treatment is justified, rather than in considering the "other status" question, and need not be further considered at this stage."
"119. Mr Stilitz submits that the position of those working other than under a contract within the meaning of section 230(3) of ERA should be recognised as a relevant "other status" for the purposes of article 14 . Alternatively he submits that the relevant status is either that of a person "holding judicial office" or the larger class of "office-holder"
"110. In Stec v United Kingdom(2006) 43 EHRR 47 , at para. 51, the Grand Chamber of the ECHR noted that Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. It said, at para. 52: "
"(1) In this Act "worker" means an individual who works, or normally works or seeks to work – under a contract of employment, or under any other contract or employment relationship whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his; …"
"…under any other contract or employment relationship whereby he undertakes to do or perform personally any work or services for another party to the contract or employment relationship who is not a professional client of his; …"
"90. If we are right as regards issue (1), it is unnecessary to reach a view about issue (2). We are inclined to think, however, that having regard to the strength of the interpretative obligation under section 3 of HRA it would be possible to read section 230(3) of ERA down so that it extended to an "employment relationship" of the kind found to exist in O'Brien . It does not seem that the definition of a worker by reference to the existence of a contract, so as to exclude a "mere" office-holder, is a fundamental feature of the legislation."