Where does the law stand on Foster Carers?

Home Articles ARTICLES Where does the law stand on Foster Carers?
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Foster Carers

Currently UK employment law determines that only in a “foster to adopt” situation is there a statutory right for employers to pay time-off to employees who foster a child.

Should your member of staff be both a local authority foster parent and a prospective adopter, the employee could possibly find themselves in a “foster to adopt” situation. If that is the case, then they will be entitled to adoption leave and pay.

How can employer’s assist potential foster carers?

Parental Leave does not cover foster carers, only if the child is adopted then 18 weeks of parental leave 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 carers. Any employee with at least 26 weeks of continuous service has the right to request flexible working. Employees who are eligible are able to use this right to suggest working hours that give their dependants a comfortable home life. You are not legally bound to automatically agree to flexible working requests, however you are required to handle all requests in a reasonable manner and will only be able to 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 length of service) are able to take a ‘reasonable’ amount of unpaid time off work without notice to deal with particular unexpected emergencies affecting their dependents. Children within a foster care situation would count as a dependent as they rely on the employee, to familiarise with who else is considered a dependant and dependency leave in general, please read our article here.

Do foster carers have employment rights within their role?

Not currently, no.

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 10 years and 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 are afforded is two weeks respite a year.”

She continued that “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.”

Carers will usually be employed by local authorities, charities or private companies that will act on behalf of the local council. Depending on factors such as how demanding that child they care for is, carers will receive a weekly allowance to cover costs ranging from £150 to £500 per child. In addition to this many carers will also receive a fee to compensate them for their work.

Historically they have been regarded as a ‘worker’ – which is a separate legal category short of ‘employee’. Workers are not entitled to full employee rights, although they do receive paid holidays, the national minimum wage and pension contributions.

Will this change?

Possibly.

Dr Jason Moyer-Lee, general secretary of the Independent Workers Union of Great Britain (IWGB) argues: “Foster care workers are not merely substitute parents. Many, like Sarah, are highly qualified, rigidly supervised, and paid for the work they do.

“Despite this, unfortunately, local authorities have not recognised these carers as having any 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 the written agreement that carers have with local authorities or fostering agencies is not a legal contract and a legal contract is a determining factor in whether someone is considered a worker or an employee.

However, more recently the Glasgow Employment Tribunal found that some specialised fostering agreements could be shown to be different from those the Court of Appeal was considering, and deemed the carers should be classified as “employees” potentially highlighting a change of attitudes.

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