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Employment law

Maternity leave and your legal rights as a business partner

As a professional woman in a business partnership, what are your legal rights when pregnant? With all the changes coming your way (physically, emotionally, logistically) why not let us take care of a few of the basics.

16 June 2016

What are your rights as a partner?

As a woman who is pregnant you will be protected from discrimination, whether you are a partner or an employee. But different rights are afforded to employees and partners, so any misconception here could be costly.

Sometimes, if you are a salaried, as opposed to an equity partner, you may have employment rights. If we can establish that you are an employee, you have a statutory right to 52 weeks maternity leave, a corresponding right to statutory maternity pay, and in some cases, perhaps even enhanced (contractual) maternity pay.

If you are truly a partner… the starting point is your Partnership Deed, but what are your legal rights when the partnership deed says nothing?

Pregnancy and childbirth are protected characteristics under the Equality Act 2010 and the Equal Treatment of Self-Employed Workers Directive. As such, from conception, until 2 weeks after birth, if you are de-equitised, expelled or suffer some other detriment, this ‘unfavourable treatment’ may give you a legal claim.

Pending of course your sense of job fulfilment, most of us will want to bask in that glory of motherhood a bit longer than this 2 week ‘protected period’ which is where things become a little more fuzzy.

What can you do if you feel you are being discriminated against?

In discrimination law, you often need to compare yourself with someone who does not share your protected characteristic and who you can show, was treated more favourably, and arguably, men are not likely to want to take as much time off work as women.

Assuming the Partnership could prove that it takes the same (unsympathetic) view of partners of either gender taking leave to look after the little bundle of joy, it may still be indirectly discriminating against you, since women would in theory be likely to be affected to a greater extent than men. So if the Partnership is curtailing your leave, you may have a legal claim for maternity discrimination. This will be subject to the firm showing that the approach it took to your request for maternity leave was aimed at achieving some business need.

Your right to pay where the Partnership Deed is silent is also somewhat uncertain. Discrimination law does not give employees the right to full pay throughout the duration of maternity leave and by analogy, if this issue was before a Tribunal or Court, they would likely take a similar approach. In which case, it’s likely to be lawful for the partnership to reduce your profit share on a pro-rata basis to take account of your maternity leave.

As such, it’s important to note that a self-employed partner (who is registered with HMRC), will be entitled to 39 weeks Maternity Allowance.

When to seek advice

For expert employment legal advice on your circumstances, please call our expert solicitors on 0330 041 5869 or contact us online and we'll call you.

All the above information was correct at the time of publication.

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