Special labour law protection for foster parents and the child in their care

Radovanović Dragana∗

Accordingly, it highlights the efforts being made to ensure, together with intensive and additional support from society, that a child without parental care, or a child under parental care with disabilities or behavioral issues, being temporarily prevented from living with their parents, gets the opportunity for optimal development in a family environment. This aims to support the child’s return to their biological family, prepare them for independent life and work, or change protective measures (Regulation on Foster Care, 2022). At the same time, it enables the foster carer of the child, upon decision of the guardianship authority, to reconcile family and work life more easily. As opposed to this demand, there is a demand for preventing and eliminating discrimination based on family responsibilities, due to deeply rooted prejudices and stereotypes about the limiting impact on fulfilling work responsibilities, as well as the intention of certain employers to place foster parents in a disadvantaged position compared to other employees in order to avoid additional costs and difficulties in organizing work inherent in implementing foster care. Therefore, reconciling these seemingly opposing demands poses a challenge for labour law, which must adequately address all these issuesin order to support all roles that women and men hold in modern society, achieve equality in the workplace, improve dignified living and working conditions, ensure the wellbeing of the child, promote foster care, and so on.

2.    Basic principles on special protection of foster parents in employment relationships

Its importance is evident also in preventing and eliminating discrimination based on family responsibilities. Without it, diverse situations in which certain employees find themselves would not be acknowledged, and it would only reinforce existing inequalities. Therefore, the differential treatment of employees resulting from its application is not seen as a violation, but rather as a premise of of non-discrimination principle. However, true equality in the workplace can only be achieved if such preferential treatment is aligned with nature and scope of support and assistance provided and/or existing discrimination. In this light, it should be subject to periodic assessment to determine whether it is still justified and necessary (Petrović, 2009).

• 2.1.    Leave from work for childcare

• 2.2.    Protection from termination of employment contract

Fulfilling the purpose of foster care corresponds to the obligation of the foster parent to provide adequate care for the child, in their direct care as decided by the guardianship authority, in order to ensure optimal child development. For this reason, it is necessary to allow leave from work for childcare.

At international level, there is no special form of leave from work for childcare as foster leave. However, a foster carer may use parental or a similar form of leave from work for the child in their direct care, based on the decision of the guardianship authority, especially since the establishment of foster care creates a relationship between the foster carer and the child, that in terms of quality and content, corresponds to the relationship between a parent and a child. Accordingly, the International Labour Organization (ILO) states that employees with family responsibilities should be allowed to return to work after taking leave due to those responsibilities (Convention No. 156/1981), i.e. the use of parental leave (Recommendation No.165/1981). Following the example of this organization, the Council of Europe requires member states to allow the use of optional leave from work for childcare (The Revised European Social Charter, 1996), while the European Union obliges its member states to provide parental orsimilarly related leave from work (Directive 2019/1158). These organizations respect differences in national situations and therefore, allow member states to regulate duration and use of parental and/or related leave from work more specifically, taking into account that international standards present arelative minimum in relation to the national ones. However, a summary of their legislation is not possible due to variations regarding available forms of this leave, as well as its duration and use. For example, in Italy, parental leave exists in the form of optional leave fromwork. In principle, it may be used by one or both foster carers simultaneously within the first 12 months of the child’s placement in their family, and at most until the child reaches adulthood, not exceeding the duration of 10 months in total. In case of multiple foster care, leave must be used under the same conditions for each child. In Spain, parental leave lasts up to 16 weeks, and the right to use it is individual and non-transferable. In the first 6 weeks upon decision of establishing foster care, leave must be used in continuity, while the remaining 10 weeks may be used in continuity or with breaks – until 12 months from the date of the decision have passed. In agreement with the employer, the remaining 10 weeks can also be taken as part-time leave from work. However, if the child has developmental disabilities, parental leave can last one week longer per foster parent, and in case of multiple foster care 2 weeks longer – per child. Most countries guarantee a compensation during parental or related leave from work, either as a social insurance benefit or being partially paid by the employer (Parliament of Montenegro, 2024).

Protection from termination of the employment contract is an important segment of special protection for foster carers in employment, not only because of deeply ingrained prejudices and stereotypes about the limiting impact of family obligations on fulfilling responsibilities toward the employer, but also due to intention of some employers to avoid additional costs and organizational difficulties inherent in the special protection of foster carers in employment, by misusing the right to terminate the employment contract. Accordingly, the International Labour Organization first prohibited discriminatory termination of employment (Convention 111/1960), and afterwards established that employment cannot be terminated without a valid reason. Valid reasons to terminate employment will be considered the ones related to capabilities or behaviour of the employee, or the operational needs of the employer, in particular, reasons related to family responsibilities will not be considered valid (Convention 158/1982). The European Union goes a step further, requiring member states to prohibit not only terminating employment due to reasons of requesting or using parental leave or leave from work due to urgent and unavoidable family responsibilities but also less favourable treatment of employees who have requested or used such leave. If they have taken leave, they must have the opportunity to return to the same or equivalent workplace under conditions that are not less favourable for them, along with benefiting from any improvements in working conditions they would have been entitled to had they not taken leave (Directive 2019/1158). On this basis, and in line with national conditions and practices, most countries have paved the way for the protection of foster carers from employment termination. In countries where the concept of valid reasons for terminating employment contracts has been implemented, prohibition of employment termination due to family responsibilities is meaningful in preventing termination of employment contrary to the interests of society, and therefore, such termination is null and void by law. In countries where the concept of valid reasons for terminating employment contract has not been implemented, a foster carer can retain job security by referring to prohibition of discrimination based on family responsibilities in relation to employment termination. Some countries guarantee workers with family responsibilities special protection from employment termination, thus excluding the possibility of employers initiating the termination of employment for any reason during the so-called protected period (Balnožan, 2021).

During leave from work for childcare or special childcare, a foster carer is additionally protected from termination of the employment contract. Namely, if the employer initiates termination of the employment contract during leave for childcare or special childcare, an additional protective mechanism will be activated, resulting in the nullity of the termination decision, on condition that the employee has notified the employer of the circumstances related to taking this leave by providing a certificate from the competent authority before the termination of the employment contract or within 30 days of the employment termination.“ Therefore, after the right to leave from work for childcare and special childcare has expired, there are no obstacles for the employer to terminate the employment contract if the conditions prescribed by law have been met” (Ministry of Labour, Employment, Veterans and Social Affairs, 2025); if the employee has established a fixed-term employment relationship, the term of the contract is extended until the expiration of leave for childcare or special childcare. This way, employers cannot take advantage of objectively justified reasons for establishing a fixed-term employment contract to avoid the application of legal norms on the protection of maternity and parenthood (Kovačević, 2016).

• 2.3.    Protection within the Framework of Working Hours

3.    Conclusion

Special protection for foster carers in employment also implies prevention of night work, overtime work, and flextime, particularly because such work can, by its nature, intensify the conflict between family responsiblities and responibilities to the employer. The International Labour Organization points this fact out, suggesting that special attention should be paid to general measures for improving working conditions and quality of work life, especially those aimed at: progressive shortening of day working hours and reducing overtime work; introducing more flexible arrangements concerning work schedules, rest times and holidays, while at the same time considering the level of development and social needs of countries and different activity sectors. When feasible and appropriate, while organizing shift work and assigning night work, attention should be paid to the needs of employees with family responsibilities (Recommendation No. 165/1981). On the other hand, the European Union obliges member states to take necessary measures so that employees with children under the age of 8 are entitled to flexible working conditions, as well as the right to return to their original work schedule upon expiration date of the agreed period, or if justified by objective circumstances, berfore the expiration date of the agreed period. Member states are also required to take necessary measures so as to enable the employer to address any request of the employee in a reasonable timeframe and provide an explanation why the request has been rejected or use of flexible working conditions postponed. However, member states are allowed to set reasonable limits on the duration of flexible working conditions, and condition the right to flexible working hours on the duration of the employment contract or duration of the employment contract with the same employer, which cannot exceed 6 months. If the worker has concluded consecutive fixed-term employment contracts with the same employer, the total duration of these contracts must be taken into account when calculating the reference period (Directive 2019/1158).

Comparative law recognizes minor differences regarding quality and scope of protection for foster carers within the framework of working hours. Some countries limit the actual scope of this protection to prevent overtime and night work, while other countries provide it to foster carers of healthy older children and/or children with developmental disabilities. These differences also exist in neighboring countries— in the Federation of Bosnia and Herzegovina, a person who, based on the decision of the competent authority, cares for and raises a child up to the age of 6 is allowed to work overtime and under the system of flexible working hours with their written consent, and to work at night with their written consent—until the child reaches 2 years of age (Labour Law of the FBIH, 2016), while in Montenegro, a foster carer of a child with developmental disabilities can work overtime and at night based on their written consent (Labour Law, 2019).

In recent decades, there has been an increasing number of children placed in foster families, under the influence of the social protection system reform. With this in mind, it is essential to reaffirm the importance of special protection for foster carers in employment, and make the issues related to its implementation visible so that they can be addressed in an adequate manner. In most countries, there is no legal guarantee for this protection, and in countries where it has been normatively confirmed, it has been marginalized due to a low level of awareness of its importance, the intention of employers to avoid additional costs and difficulties in organizing work inherent to its application, etc. Therefore, in the upcoming period, more proactive measures should be taken to ensure that this protection gets normatively confirmed in the countries where it has not yet been implemented, and in those where it exists, it should be consistently applied—through organizing forums and campaigns to raise awareness of its significance, publicizing good and bad practices, providing financial incentives to employers, etc. Additionally, the scope of its application should be expanded to include all individuals who need it. This is especially important since it is guaranteed for individuals working in the form of an employment relationship, while those performing work outside the employment relationship are denied this protection solely because they are not working under an employment contract.

Conflict of Interest

The author declares no conflict of interest.

Radovanović Dragana

Univerzitet Privredna akademija u Novom Sadu, Pravni fakultet za privredu i pravosuđe u Novom Sadu, Novi Sad, Srbija

POSEBNA ZAŠTITA NA RADUHRANITELJA I DETETA O KOJEM SE STARA

APSTRAKT: Radnopravne refleksije zasnivanja hraniteljstva nalaze svoj pravni izraz u posebnoj zaštiti hranitelja u radnom odnosu. Ta zaštita je osmišljena sa ciljem da se, uz dodatnu i intenzivnu podršku i pomoć društva, detetu bez roditeljskog staranja, odnosno detetu pod roditeljskim staranjem koje ima smetnje u psihofizičkom razvoju ili poremećaj u ponašanju, a privremeno ne može da živi sa roditeljima, obezbedi optimalan razvoj u porodičnom okruženju. Krajnji cilj pomenutog je povratak deteta u biološku porodicu, osposobljavanje za samostalan život i rad ili promena mere zaštite. Sa druge strane, hranitelju koji o detetu neposredno brine, na osnovu odluke organa starateljstva, potrebno je omogućiti lakše usklađivanje porodičnih obaveza i obaveza prema poslodavcu. To implicira i povremeno odsustvovanje sa rada radi nege deteta, kao i odsustvo sa rada radi posebne nege deteta, zaštitu zaposlenja i zaštitu u okviru instituta radnog vremena. Ovaj rad temelji se na primeni pravno-dogmatskog i uporedno-pravnog metoda, a ima za cilj reafirmaciju posebne zaštite hranitelja u radnom odnosu, uz prikaz najznačajnijih aspekta njenog regulisanja na međunarodnom i nacionalnom nivou.

Ključne reči: hraniteljstvo, porodične obaveze, odsustvo sa rada radi nege i posebne nege deteta, zaštita zaposlenja, zaštita u okviru instituta radnog vremena.