Contractor Week: Do you have any maternity rights as a freelancer or contractor?

If you’re self-employed and thinking of starting a family, it’s worth speaking to your accountant and clients to find out what maternity rights and benefits you might be eligible for, says HR expert Sally Jackson.

It’s a great life working for yourself, particularly if you have children. You can do as much work as you want to pay the bills and keep your business ticking over while having all the time you want to spend with your baby. But there’s likely to be at least some time when you can’t work, and, of course, when you’re not working, you’re not earning. But you might be eligible for some maternity pay or benefits.

If you’re self-employed, running your own business and working for a variety of clients, then you have no rights to maternity leave or pay from your clients. You do, however, have the right to not be discriminated against, so a client shouldn’t choose another freelancer or contractor over you if you’re available and keen to work, simply because you’re pregnant or have just had a baby.

Get advice early on

My first piece of advice would be to speak to your accountant if you’re self-employed and thinking of starting a family.

That may sound strange, but it could be worth you switching from being a sole trader to setting up a limited company, because as an employee (albeit of your own firm) you could claim maternity leave and pay through your own company. That’s six weeks at 90% of your average weekly earnings and 33 weeks at Statutory Maternity Pay (currently £138.18 a week).

You can claim Maternity Pay from 11 weeks before your baby is due. You can also buy childcare tax-free vouchers through your company, which is a tax efficient way of contributing towards your childcare costs for when you do start work again.

Are you a worker or an employee?

But plenty of freelancers work so closely with a particular client that, in some circumstances, they might be deemed in the eyes of the law to be either “employees” or “workers” of that firm.

If so, you are eligible for a range of maternity rights. A worker should have a health and safety assessment, to determine if you can continue to do your job, the right to have reasonable adjustments made to your work to protect your health and that of your child, and you’re entitled to paid time off to attend antenatal appointments.

If you’re an employee, you’ll enjoy these rights while also being entitled to maternity pay, up to a year of maternity leave and the right to return to work at the end of your leave.

So how do you know if you fall within the brackets of being either an employee or a worker? It’s likely that you will fall into one of these categories if:

• The company relies on you to do the work personally.
• There’s a reasonable expectation that the firm will continue to give you work.
• The work you do for that client takes up most of your working week – even though you may have other clients.
• The company controls the work that you do and the way that you do it. For example, by requiring you to be at work between certain hours, follow a particular method of working or work in a particular way
• You’ve been integrated into the firm (for example, if you have a desk at work, you’re invited to social gatherings, or if your boss regards you as being part of the team).
• You’re working through an agency as a “temp”.

If you become pregnant then you should look into your employment status with your clients. It could be that, even though you work for a variety of firms, your relationship with one is such that you’re effectively a worker or employee.

You should also think about how you want to manage the relationships with your clients, both while you are pregnant, and once you return to work.

If you’re interested in finding out more about the status of workers and employees, or you’re a small business owner who employs freelancers or temporary staff on fixed-term contracts, I’ve covered this subject in my previous post on this site.

How should you broach the subject with clients?

It’s understandable that you may be wary, but I think honesty is always the best policy. Most women wait until their pregnancy is well established, often after they’ve had their 12-week scan, before speaking to their company.

Whether you’re self-employed or an employee, it’s a good idea to let the company know sooner rather than later. This is partly so they can make sure that you and your baby are safe at work, but also because your pregnancy will become apparent soon enough, and it’s not the best idea to let them work it out for themselves.

Tell the company that you’re going to have a baby and that you want to plan for your absence. Show them that you are thinking about the best interests of their business, and how you can manage your departure (and, hopefully, your return).

If you think you might be an employee then ask what they’re willing to do for you. The firm may simply never have thought about your situation, just valued your work and let the relationship develop. But once you speak to them then they may realise they are legally your employer and have obligations towards you.

This is worth working out before you start your leave, as employees have the right to return to the same job (or an equivalent) at the end of their maternity leave period, and this job security is invaluable once you’ve got a family to support.

But if you’re unsure of your rights, or if you feel you didn’t get the response you expected from your client when you spoke to them, then it’s worth approaching other organisations for advice.

If you’re a member of a union then it should be your first contact – otherwise the Citizen’s Advice Bureau or ACAS can be very helpful. It’s possible that you don’t have any maternity rights with your client, but it’s worth being clear about the situation.

For more on this subject, read Sally’s piece on what small business owners need to know about maternity rights.

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