This year's John Lewis Christmas advert has highlighted the challenges faced by children in care and their foster families. This follows a recent review calling for care experience to be a protected characteristic under the Equality Act. As John Lewis commits to becoming the employer of choice for care experienced young people, this article considers if there is a gap in current diversity initiatives.
There were over 100,000 children living in care in 2020-21 according to charity Become. To put this in context, the entire prison population of England and Wales is just over 80,000. Large numbers of children are leaving the care system each year, but they will experience considerably poorer employment outcomes than their peers due a range of complex factors, including stigma, lifelong identity issues and lack of support and opportunity. The educational and labour market outcomes of those in care for longer periods are better than for shorter periods, but only marginally, and still far worse than for all individuals. Young people with experience of the care system are less likely to have a degree, are less likely to be employed and, for those in employment, there is a significant pay gap.
Care experience as a protected characteristic?
In light of the inequalities faced by care leavers, the independent review of children's social care recently called for care experience be added to the list of characteristics protected by the Equality Act 2010. In their view, care-experienced people encounter discrimination which is similar in nature to other groups whose characteristics are legally protected. The report argues that the disadvantage faced by the care-experienced community is so great that it "should be the civil rights issue of our time".
It remains to be seen how the government will respond to this, but it is interesting to consider what it could mean in practice. If care experience did become a protected characteristic, employers would need to consider how to ask about it as part of their diversity monitoring efforts and how to audit their policies and practices for the risk of discrimination. As with other hidden or largely hidden protected characteristics, it would be up to an individual whether they wished to share their care experience or not. Recruitment practices would need to be reviewed for bias, and managers and recruiters would need to be more informed on the particular disadvantages faced by children growing up in the care system when it comes to future employment.
Fostering, adoption and employment law
In the context of considering the employment challenges faced by people with care experience, it is also important to reflect on the workplace rights of foster carers and adoptive parents who provide a much-needed route out of children's homes and the social care system.
If they are in employment, adoptive parents will be entitled to adoption leave and pay (see our earlier article on this for more details). Foster carers, however, are in a different position. There are various types of fostering, including short and long term arrangements, and the impact of fostering on a foster carer's working life will vary depending on the circumstances. There has been litigation over whether foster carers can be regarded as employed by, or working for, the local authority, with their legal status remaining contentious. Some foster carers are also combining fostering responsibilities with paid work outside of the home, which raises the question of their rights in the workplace.
Foster carers may be eligible for adoption leave and pay, but only if they are taking part in the "fostering for adoption" scheme. The idea behind this scheme was to reduce unnecessary moves in and out of foster care for the child, as they are placed with new permanent families sooner in the process. Foster parents taking part in the scheme are eligible for adoption leave as soon as the placement starts even though the adoption will take place later. Outside of this scheme, however, foster parents who are combining work with fostering responsibilities do not have any specific employment rights to take leave. It is interesting to contrast this with the fact that employees are entitled to a reasonable amount of time off for public duties. So, in practice, a school governor currently has more rights to time off work than a foster carer.
What more can be done?
From a policy perspective, the government should arguably do more to support care leavers into employment. Care leavers aged 16 to 24 starting apprenticeships in England after 1 August 2018 may already be entitled to a £1,000 bursary during the first year of training. This is in addition to the £1,000 provided to both employers and training providers when they take on 16 to 18-year-olds or 19 to 24-year-olds who were in care. But the government could consider other incentives, for example, extending the National Insurance Contributions relief that is available for employing veterans of the armed forces to cover care leavers.
Employers may also wish to consider people with care experience as part of their wider diversity, equity and inclusion initiatives. Positive action and levelling up measures can generally be targeted at people with care experience without falling foul of the restricted legal regime imposed by the Equality Act, because such measures would not be favouring people with one particular protected characteristic over another (see our Inbrief guide to positive action for more information on positive action and the law). Levelling up measures could include initiatives such as reserving places on internship programmes or guaranteed interview schemes. John Lewis has published a plan for change in which they make a long term commitment to be the employer of choice for young people who are care experienced. Their approach includes work experience, other employability support and longer term goals around dedicated apprenticeships and financial support. Employers might also wish to consider adding care experience to their existing diversity monitoring initiatives and reviewing their recruitment strategies with care leavers in mind. Other areas to consider include support for foster carers and making sure that maternity provision is matched for adoptive parents.
The current government has shown no appetite for expanding the current list of characteristics protected by the Equality Act (for example pressure to include menopause has been resisted) but calls for care experience to become a protected characteristic could increase in the years ahead and future governments may be more receptive to this idea.
The John Lewis & Partners' 2022 Christmas advert can be viewed here.
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