1. I am a self-employed plumber about to start on a big renovation project. But on the first meeting my client saw I was pregnant ant told me that he won’t have me work for him as I won’t be able to complete the assignment (the baby is due half-way through the project). Is it discrimination?
Individuals who are engaged under a contract to do work personally are classed as ’employees’ for the purposes of the Equality Act 2010 and receive protection from discrimination.
If you have engaged with your client under a contract which requires you to do the work personally i.e. you cannot send a substitute or subcontract, then you will be covered.
It is unlawful for the client to treat you unfavourably because of your pregnancy (or because of illness you suffer during pregnancy). Refusing to allow you to work until you choose to begin maternity leave would be unfavourable treatment, amounting to pregnancy based discrimination.
Your claim would need to be brought in the Employment Tribunal. Before lodging your claim you will need to follow an ‘early conciliation’ procedure by contacting ACAS. A discrimination claim must generally be submitted to the tribunal within 3 months of the act complained of. See here for more details.
3. How do I calculate my damages?
Broadly, you could receive compensation for:
- the financial loss you have suffered i.e. the earnings you would have received for doing the job up until you started your maternity leave; and
- the injury to your feelings. This type of loss is assessed in three bands depending on the severity of the discrimination. In the type of case outlined where there is a single act of discrimination an award in the lower band of between £800 and £8,400 is most likely. See here for more details.
4. I am a self-employed trainer, due to do a train a client on their new software on Tuesday next week and can’t substitute anyone (I’m the only trainer on this specific software). But this is when my 20 weeks scan is scheduled and the hospital won’t let me change the date. Can I say that this is an ante-natal appointment? If the client sacks me because I can’t deliver the training, what are my rights? Is this discrimination?
Unfortunately as a self-employed person there is no specific right for you to take time off to attend ante-natal appointments.
The hospital ought to rearrange your appointment if you really cannot attend and you should contact them at the earliest opportunity to do this.
If you really cannot rearrange the appointment you should try and reschedule the training with your client. Unfortunately, however it is unlikely you could successfully claim for discrimination if the client refuses to reschedule because you can’t deliver the training on the agreed date due to your ante-natal appointment.
You could however have a claim for discrimination if you believe the client’s real reason for refusing to work with you is because of your pregnancy (not simply the clash of date with your ante-natal appointment). See question 1 and question 2 above.
5. I am a self-employed mother, am I entitled to statutory maternity leave and pay?
As a self-employed person you are seen as having the ability to set your own hours (including choosing when not to work) and as such you do not have a statutory entitlement to maternity leave.
You may be entitled to maternity benefit in the form of ‘Maternity Allowance’ which is paid for a period of up to 39 weeks if qualifying
You can work for up to 10 days while you are receiving Maternity Allowance (MA) without affecting your benefit. These days are known as keeping in touch (KIT) days.
Any work you do as a KIT day will count as a whole day, even if you only work for half an hour of that day. You must tell Jobcentre Plus if you do any work (including if you take any KIT days) while you are receiving MA. Your MA will stop being paid if you work more than 10 days (whether for an employer or as self-employed) but your MA period continues to run. You may be able to restart your MA claim, depending on how long you have been disqualified for. You will be disqualified from receiving MA for at least the number of days that you worked in excess of 10 days.
7. I have a business, I won’t work myself at least for a year after the baby is born, but I will continue to receive income from my business during that time. Will that income affect my Maternity Allowance?
You will lose your entitlement to Maternity Allowance if you work for more than the 10 permitted KIT days (see question 6).
There is no specific restriction on receiving income from your business. For example, if you have completed a project before you begin maternity leave and your client pays afterwards. However, as a sole trader the circumstances where you might receive income without doing any work connected to it are likely to be very limited.
For example if you have sub-contracted work which is carried out by another person on your behalf you would still need to invoice that person and process payments. This is administrative work carried out in connection with your business which should be restricted to KIT days. Even managing or liaising with a person who is working for the business during your absence or chasing an invoice from a client who has not paid would be considered working for your business.
As you are able to work for the business for 10 days during the Maternity Allowance period you could however consider scheduling one KIT day per month which you could use to carry out the tasks needed for you to receive income from the business during your maternity allowance period. The amount you get paid for the days you do work will not affect your Maternity Allowance.
It is important to remember that any work you do on a KIT day will count as one day’s work, so if you only spend an hour work for the business, you will still be treated as you having used one of your 10 KIT days.
8. Can I pay my National Insurance Contributions (NICs) early so that I qualify for the maximum amount of Maternity Allowance?
Yes. If you are self-employed your entitlement to Maternity Allowance will be assessed based on the Class 2 NICs you have made in the period of 66 weeks preceding your expected week of childbirth. Because Class 2 National Insurance is now not paid until the end of the tax year, when you claim Maternity Allowance, you will be told if you need to pay Class 2 NICs early to get the maximum rate of Maternity Allowance, and how you can do so.
You can also contact HMRC on the national insurance enquiry line (0300 200 3500) and they will send you a letter telling you how to make early payment.
Although self-employed women who have given birth may be entitled to receive Maternity Allowance, there is currently no equivalent for self-employed adopters.
10. I am a self-employed mother. Can I get Shared Parental Leave or Pay?
No. Self-employed persons are not eligible for shared parental leave or pay.
However, if you are in receipt of maternity allowance and you have an employed partner who meets the eligibility requirements then your partner may be entitled to receive shared parental leave and pay.
In order for your employed partner to receive shared parental leave and pay it will be necessary for you to ‘curtail’ your entitlement to maternity allowance by ending it early. A curtailment notice should be submitted to the Jobcentre Plus specifying the date when you want your maternity allowance to end. Your partner will be entitled to 50 weeks of shared parental leave less a period equal to the number of weeks’ maternity allowance you have received (it is compulsory that you take the first two weeks following the birth, so there are only 50 weeks to share).
No. Self-employed persons are not eligible for Shared Parental Leave or Pay.
If you have an employed partner who will be in receipt of statutory adoption leave and pay then your partner may be entitled to curtail their adoption leave and choose to receive Shared Parental Leave and Pay instead.
12. I am a self-employed father. Can I get Shared Parental Leave or Pay?
No. Self-employed persons are not eligible for Shared Parental Leave or Pay.
If you have an employed partner who is entitled to Statutory Maternity Leave and Pay (or Maternity Allowance) then your partner may be entitled to curtail her Maternity Leave and Pay and choose to receive Shared Parental Leave and Pay instead
13. I am a self-employed father. Can I get Paternity Leave or Pay?
As a self-employed person you are seen as having the ability to set your own hours (including choosing when not to work) and as such you do not have a statutory entitlement to Paternity Leave.
There is currently no form of statutory paternity pay for self-employed persons.
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline on 0300 012 0312 for more details.