Currently, the UK’s foster carers employment laws determine that only in a “foster to adopt” situation is a statutory right for employers to pay time-off to employees who foster a child.
Should your staff member be both a local authority foster parent and a prospective adopter, the employee could find themselves in a “foster to adopt” situation. If that is the case, they will be protected by foster care employment law and entitled to adoption leave and pay.
A Foster Carers Employment Rights and Parental Leave for Foster Parents
So, are foster parents’ employment rights the same as regular employment rights?
Parental Leave does not cover leave for foster parents. Only if the child is adopted parental leave for foster parents would be set at 18 weeks of and can be taken during the five years following the date of the adoption or until the child’s 18th birthday.
Flexible working, however, is an appropriate way to manage any staff members who are foster carers. Employment rights say that employees with at least 26 weeks of continuous service have the right to request flexible working. Eligible employees can use this right to suggest working hours that give their dependants a comfortable home life. You are not legally bound to agree to flexible working requests automatically. However, you are required to reasonably handle all requests for parental leave for foster parents through flexible working hours. You can only refuse if the request does not reconcile with a specific list of legitimate business reasons.
Under the Employment Rights Act 1996, all employees (regardless of the length of service) can take a ‘reasonable’ amount of unpaid time off work without notice to deal with unexpected emergencies affecting their dependents. Children within a foster care situation would count as dependent as they rely on the employee. Fostering a child is very different from adopting, so paid parental leave for foster care isn’t possible under National Employment Standards. Please read our article here to familiarise yourself with who else is considered a dependant and dependency leave in general.
What are Carers’ Employment Rights for People that Foster?
Currently, foster care rights don’t include worker’s rights.
In October 2017, a foster carer began a legal claim arguing for worker’s rights for foster carers. Sarah Anderson had been a foster carer for ten years. It argued that whilst working for Hampshire County Council. She is often “…on call 24 hours a day – evenings, weekends, Christmas, bank holidays – and all we get afforded is two weeks foster care leave from work a year.”
She continued, “Our lack of rights extends beyond any proper holiday entitlement – we have no employment rights whatsoever, and we can lose our jobs on a whim overnight.”
Prospective foster carers offering fostering services usually get employed by a local authority, charities or private companies that will act on behalf of the local council. Depending on factors such as how demanding a foster child they care for, foster care rights allow carers to receive a weekly fostering allowance to cover costs ranging from £150 to £500 per child. In addition, many carers will also receive a fee to compensate them for their work.
Historically they have been regarded as a ‘worker’ – a separate legal category short of ‘employee’. Workers are not entitled to full employee rights, including parental leave. Foster care workers receive paid holidays, the national minimum wage and pension contributions.
Will Foster Care Employment Law Change?
Possibly, foster care employment law may change in the future.
Dr Jason Moyer-Lee, general secretary of the Independent Workers Union of Great Britain (IWGB), argues: “Foster care workers are not merely substituting parents. Many, like Sarah, are highly qualified, rigidly supervised, and paid for their work.
“Despite this, local authorities have not recognised these carers as having carers employment rights.”
According to the Court of Appeal, foster care arrangements are not contracts because their terms are set out in law and not freely entered into and negotiated by the parties. Tribunals and courts in England have also ruled that carers’ written agreement with local authorities or fostering agencies is not a legal contract. A legal contract determines whether someone gets considered a worker or an employee and whether that person would be entitled to carer’s employment rights.
However, more recently, the Glasgow Employment Tribunal found that some specialised fostering agreements could differ from those the Court of Appeal was considering. They deemed the carers should be classified as “employees”, potentially highlighting a change of attitudes toward foster carers’ employment laws.
Does the Law allow Maternity Leave for Foster Parents?
The simple answer to this is no. The current law does not make provision for maternity leave for foster parents, apart from one exception. If the fostering parent/s are involved in the ‘fostering for adoption’ scheme, then that staff member would be entitled to take adoption leave.