Every small business owner knows that employees have an increasing array of rights when it comes to starting a family. But did you know that some of these rights might also extend to your flexible workforce, asks HR expert Sally Jackson.  

One of your temps tells you that she’s pregnant. OK, you think, this isn’t my problem, because she isn’t one of my employees. Or is she?

One way in which many entrepreneurs try to manage their small but growing businesses is by keeping a small core of permanent employees, which they bolster with temporary staff when they’re busy. But what often happens when they experience rapid growth is that they become increasingly reliant on their temporary workforce, and that’s when they might run into problems.

Legally there are three working categories: on one side you have employees; on the other there are genuinely self-employed people. But in the middle there is a group known as “workers”, who are neither proper employees nor self-employed people. This group includes freelancers and agency temps – and sometimes, even some of those subcontractors that you’d thought were genuinely self-employed.

It sounds simple, but the lines between these categories can easily become blurred, and that’s where it gets complicated. It is possible for a worker, or even a self-employed person, to drift into effectively becoming an employee, in the eyes of the law.

It’s surprisingly easy for this to happen. For example, you hire someone to do a project; you love her work and she loves working for you, and you give her a succession of other projects to complete. Before you know it, time has passed and the ‘temp’ is still there, she’s got her own desk, and she goes to the office Christmas parties. What’s more, she’s doing so much work for you, that she’s not billing anyone else any more.

What are the implications for you?

You might be forgiven for thinking that someone you’d regarded as being self-employed (you’re being invoiced by her after all) doesn’t have any maternity rights. Well, sorry to break it to you, but if you’re reliant on her to do the work personally, there’s a reasonable expectation that you’re going to keep giving her work, it’s taking up the majority of her (working) time, and you’ve integrated her into your business then she probably does have some maternity rights.

At the very least, they might be able to claim that they’re one of your “workers”. But it’s possible you’re now looking at an employee that you never deliberately took on, is (possibly) overpaid because they’ve been billing you on subcontractor’s rates, and now has full maternity rights.

So what happens if an employee tells you she’s pregnant? Well, if she is an employee, then she’s entitled to the full range of maternity rights, including up to a year of maternity leave, and the right to return to work for you at the end of it. She’s also (subject to qualifying conditions) entitled to Maternity Pay. That’s 6 weeks at 90% of pay, 33 weeks at Statutory Maternity Pay (currently £138.18 per week). Plus, all employees have the right to request to work flexibly – so she might request to return on a part-time basis.

Even if that person isn’t classified as a full employee, as a “worker” she shares some of the rights of pregnant employees:

  • You must carry out a health and safety risk assessment, and regularly update this throughout her pregnancy, to determine whether she can safely continue to do her job.
  • You must make reasonable adjustments to her work to protect her health and safety and that of her unborn child, for example stopping her from doing heavy lifting during their pregnancy, or permitting her to take more frequent rest breaks.
  • She has the right to paid time off to attend antenatal appointments.

Furthermore workers, and even the genuinely self-employed, are protected against sex discrimination. So, you can’t just cancel her contract early or choose to not re-hire her because she is pregnant.

So what’s the answer?

Well, the first thing is to be very clear about how, why and when you use subcontractors. Don’t let work roll on for months without review. If it looks as though someone is becoming very involved in, or reliant upon your business, then review your working arrangement and, if necessary, get them onto your payroll as a full employee.

Don’t act hastily when one of your staff tells you she is pregnant. Yes, she may have been working for you for only a short time, but your company may still owe some legal rights.

Don’t inadvertently exclude her from your business once you know that she’s pregnant (or while she is on maternity leave). Businesses often make a number of assumptions that the individual concerned could construe as discriminatory.

Typical examples of this include: “There’s no point giving her the project as she’ll be off on maternity leave soon”; “She won’t be interested in doing that because she’s about to have a baby”; “She will probably take a year off with the baby”; and “I’m sure she’ll probably choose to work part-time when she returns”.

While away on maternity leave you shouldn’t swamp her with questions, but neither should you should drop all contact with her. If she’s an employee, then she has the right to be kept informed of changes within the business and notified of vacancies that come up while she’s off, and given the opportunity to apply – don’t assume that she won’t want to just because she’s on maternity leave.

What about using temps through an agency instead? This might seem like an ideal solution, but tribunals or courts almost always find agency temps to have “worker” status (and sometimes, even “employee” status”). Furthermore, if you identify a risk to their health and you can’t make suitable adjustments to their work to enable them to continue, then you are obliged to either offer them suitable alternative work, or to continue to pay them until the end of the assignment.

So, unless they really are only with you for a very short time, in reality you wouldn’t gain very much by using an agency temp over having a regular employee. Like self-employed people, you can’t terminate their placement early, or refuse to accept them at your place of work because of their pregnancy.

What should you do?

All of this might make you wish that you didn’t have to hire women. Sadly, you wouldn’t be the first to think it, even in 2014. But the fact is that maternity rights no longer apply solely to women. Increasingly, maternity rights aren’t about gender, they are about families.

The law is changing, so that for babies born on or after 5 April 2015, parents can share maternity leave. This means that new fathers will soon also be able to claim maternity rights (known as “shared parental leave”) when the mother returns to work.

That’s not to mention adoption leave, in which the “primary carer” is entitled to claim maternity leave – which could be one of your male employees. That right extends to same-sex couples too.

These days, employers need to think much more proactively about the maternity rights of their staff members. Smart businesses employ the right people in the right capacity, and keep this under review, so that they don’t suffer any surprises.

For more information and advice from Sally visit www.sallyjackson.co.uk

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