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What pregnancy and maternity rights does a partner have?

 

A partner is a business owner and employer, which by definition means they are not an employee. As a consequence, partners do not benefit from all the various employment protections afforded to employees. Despite this, we are often asked about partner entitlements, particularly regarding maternity and child care.

Common questions include; maternity or childcare commitments when recruiting a partner; whether practices have an entirely free hand to decide what should go into a Partnership Deed; and what to do when the position is not documented or indeed in the absence of a Partnership Deed.

Practices are right to be concerned about these issues. Although Partners don’t have any particular statutory maternity and child care entitlements, they are protected from being discriminated against by reason of their pregnancy and maternity, gender and marital status under the Equality Act 2012.

Broadly speaking, the Equality Act provides that women should not  be subject to “less favourable treatment”, or subject to unreasonable requirements that they can not meet because of their pregnancy/maternity or childcare commitments. The basic (but not unchallengeable) assumption is that women have greater childcare responsibilities than their male colleagues.

Particular issues we have addressed where liability under the Equality Act had to be considered include:

  1. not engaging or promoting someone to Partner because of concerns that they will be absent due to maternity, or won’t be able to “pull their weight” because of childcare commitments.
  2. not allowing for any maternity leave at all or a very short period maternity leave
  3. not allowing a female Partner who has a pregnancy related illness the same sickness absence entitlements as other sick Partners
  4. during maternity related absence:

a)  reducing profit share;

b)  requiring that locum costs are covered;

c)  not allowing holiday leave to accrue;

    5.  not allowing a partner to work part time or change session times to deal with childcare commitments.

This is an area of law which is both complex and uncertain. There is only a limited amount of case law applying specifically to Partners, so each case is likely to be determined on its own merits.

Practices should be very wary of opening themselves to the risk of a discrimination claim, as these have unlimited liability. The best protection is to:

  • ensure that the practice has a clear non discrimination policy in place which includes discrimination on the grounds of maternity and childcare commitments
  • make clear that this policy applies to all staff, including partners
  • ensure that the Partnership Deed is professionally prepared, that it is clear on the subject, and that it is kept reasonably current as the law changes. Anything drafted more than 3 years ago may well be out of date with current best practice.

A final word of caution. Most advisers on this subject consider the Equality Act in the context of employment law protection. It is a common mistake to apply this directly to Partners, so be careful who you ask for advice!

Posted on October 7th 2013 in News and Publications, Newsletters


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