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:
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:
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!