Fostering and family-friendly rights: An employment law blind spot
We have just come to the end of the annual Foster Care Fortnight in the UK (12th-25th May), the Fostering Network’s annual campaign to show how foster care transforms lives.
Foster carers occupy an anomalous position in the UK workplace. In many ways, they have the same responsibilities and obligations as parents – but they do not have access to the vast majority of workplace family friendly rights. In this week’s blog, we set out where foster carers stand in terms of legal protection at work, and reflect on additional steps which might be taken by employers to support those who carry out this essential and transformative role.
The limits of the law
Foster carers often shoulder parental responsibilities without access to the statutory rights afforded to birth or adoptive parents.
Under current UK law, foster carers do not generally qualify for maternity leave, paternity leave, shared parental leave or ordinary adoption leave. The principal exception to this is ‘foster to adopt’ arrangements, where approved adopters foster a child with a view to adoption. In those circumstances, eligible employees can access statutory adoption leave and pay from the point the child is placed with them.
Outside foster-to-adopt arrangements, however, there is no dedicated statutory right to foster care leave in the UK. This creates practical difficulties for employees who may need time off at short notice to attend placement meetings, undertake mandatory training, support introductions, or help a child settle into their home. Many foster placements occur in emergency circumstances, often requiring carers to reorganise their working lives immediately.
Useful employment rights which foster carers can access
That does not mean foster carers are entirely without protection. Foster carers who are employees retain the same general employment rights as other workers. In particular, they may rely upon:
- the statutory right to request flexible working;
- time off for dependants under section 57A of the Employment Rights Act 1996 in emergencies involving a foster child; and
- protection from discrimination, including associative discrimination where a foster child has a disability.
An increasingly important development is the introduction of unpaid Carer’s Leave under the Carer’s Leave Act 2023, which came into force in April 2024. The legislation entitles eligible employees to take up to one week of unpaid leave annually to provide or arrange care for a dependant with a long-term care need. Although the legislation does not specifically refer to foster children, there is a strong argument that many foster carers will fall within its scope. The definition of ‘dependant’ includes a child or a person who reasonably relies on the employee for care. A foster child with a long-term illness, disability or other qualifying conditions is therefore likely to bring the foster carer within the protection of the legislation. That said, the entitlement is limited: it is unpaid, capped at one week per year, and applies only where the foster child has a qualifying long-term care need.
What else can employers do to support foster carers?
The UK legal framework for supporting foster carers at work remains piecemeal and heavily reliant on employer discretion. Perhaps, as we reflect on Foster Care Fortnight, there is an opportunity to accept that the limited legal rights that foster carers currently have are a floor, rather than a ceiling, to their potential workplace rights.
Employers should consider introducing a specific Fostering Policy which not only highlights current legal rights, but goes beyond this to provide additional protection and support. Options include:
- The ability to take holiday at short notice – given that foster carers are often given little notice of a placement
- An express statement that carer’s leave rights are available to all foster carers
- Signposting the family friendly rights which are available to foster carers (time off for dependants, the right to request flexible working)
- The provision of a period of leave (either paid or unpaid) which can be taken at the start or end of a placement – aimed at supporting a smooth transition for the family.
- The right to time off to attend training and social work appointments
- Manager training and guidance on supporting foster carers
In a labour market focused on wellbeing and inclusion, fostering policies may soon become another important benchmark of a genuinely family-friendly workplace.