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Pregnant partner protections and minimising risks for firms

Pregnant partner protections and minimising risks for firms

Partners in a general partnership, along with LLP members, are protected from unlawful discrimination. Whilst partners (and in this alert we use the word ‘partner’ to refer to both partners in a general partnership and LLP members) do not have the benefit of the full spectrum of employment law rights which apply to employees, they are protected against unlawful discriminatory treatment on a number of specific grounds.

In this partnership alert we look briefly at:

  • pregnancy discrimination; a complex and often confused area of law owing to the lack of case-law and legislation specifically relevant to partners; and
  • the practical steps firms can take to help prevent pregnancy and sex discrimination claims arising in the first place, which in turn can help to create a fair and supportive workplace for partners.

What pregnancy protection is available?

Partners have the right not to be discriminated because of their pregnancy or pregnancy-related illness. A firm will also be obliged to comply with certain health and safety obligations to pregnant and breast-feeding partners.

Specifically, a partner has the right not to be treated unfavourably because of her pregnancy. This protection applies from the point at which her pregnancy begins, to the end of the 2 week period following the birth of her child.

This protected period is much shorter than the protected period available to female employees. Female employees will be protected from pregnancy and then maternity discrimination from the point of their pregnancy to, potentially, the end of any additional statutory maternity leave period taken (i.e. up to 52 weeks post-birth, as opposed to just the 2 weeks post-birth applicable to partners).

Nevertheless, this does not mean that a female partner has no discrimination protection once her pregnancy and 2 week protected period is over. If she is treated less favourably because of her pregnancy after the protected period (or any maternity-related absence, if applicable), she may have sex discrimination protections (as opposed to pregnancy discrimination protections). However, she would need to show that her treatment during this time is less favourable than, for example, that of a male partner on sick leave. In contrast, during the protected pregnancy period no comparator is required: if the female partner is treated unfavourably then it will automatically be deemed pregnancy discrimination. In practice this has the effect that female partners have a lower level of discrimination protection following the birth of their child than female employees.

Are partners entitled to maternity leave?

Partners are not employees and therefore are not entitled to ordinary or additional statutory maternity leave. Nor are partners entitled to the ‘compulsory maternity leave period’ which applies to employees (when employees are prohibited from working for the two weeks immediately after birth).

Partner discrimination protections during any pregnancy or the 2 weeks following birth are as outlined above. However, if a firm does not offer a female LLP member maternity leave this could, as indicated above, arguably be indirect sex discrimination (as caring for a child tends to be undertaken by more women than men) and if so the policy would have to be objectively justified by the LLP. It could also be direct discrimination if a male partner absent on sick leave can take extended leave of absence and the female partner is not allowed to take an equivalent extended period of maternity leave absence.

What is payable to partners whilst they are on maternity leave?

As they are not employed under a contract of service, a partner is not entitled to statutory maternity pay (although LLP members deemed employed for tax purposes under salaried members’ rules may qualify). Partners are likely to be entitled to statutory maternity allowance provided they fulfil a number of conditions. Maternity allowance is a social security benefit payable for 39 weeks, traditionally provided to self-employed or lower-income workers. It is currently around £140 a week or 90% of the partner’s average weekly earnings, whichever is less.

There may be scope to argue that treating a female LLP member on maternity leave less favourably on the basis of pay during such leave than a sick male LLP member on extended sick leave, may amount to direct sex discrimination. Equal pay law is also likely to be relevant to female LLP members (but potentially not to partners in a general partnership) and the pay they receive during their maternity leave period. However, both of these aspects of partner maternity leave are complex and presently uncertain and outside the scope of this brief alert.

Do Firms offer contractual maternity pay and leave?

Putting a partner’s strict legal entitlement to one side, many firms typically offer their female partners enhanced contractual maternity pay and leave.

Maternity pay and leave details are usually set out in the partnership, LLP deed or related policies, and this is certainly recommended. Firms tend to offer anywhere between 3 and 12 months’ maternity leave (depending on the size and resources of the firm), with it varying as to what proportion of this leave is paid and unpaid. Between 3 and 6 months paid leave is typical in our experience (with 6 months more usual in mid to larger firms), often with an additional equivalent amount of unpaid leave.

Common examples of sex and pregnancy discrimination

Firms are becoming increasingly familiar with those areas of their workplace which are susceptible to discriminatory practices relating to pregnancy and/or sex, including for example (amongst others):

  • not returning clients to a female partner on her return from a pregnancy/maternity related absence (the clients are passed to another LLP member during pregnancy/maternity leave);
  • not providing all necessary training and coaching opportunities missed during a period of maternity leave;
  • delaying the partner’s progress up the lockstep by the period of their maternity absence; or
  • not providing an annual partner development review whilst on maternity leave (which could in turn affect a female LLP member’s right to receive a profit share increase, and also her relative assessment compared to male peers when members are being selected for compulsory retirement from the LLP).

What can firms do in practice to avoid pregnancy discrimination claims?

There are a number of steps firms can undertake to avoid their exposure to pregnancy and maternity related claims by their partners, these could include (but are not limited to):

  • documenting a female partner’s maternity and associated rights. By clearly stating these rights in writing, this is less likely to lead to disagreement in the future about entitlement. It can also help evidence a firm’s ambitions of retaining and attracting female talent;
  • offering a reintegration and support programme for female maternity returners, including a coaching and mentoring programme;
    having in place detailed equality and diversity policies (which are regularly reviewed and updated where necessary);
  • training for senior management and heads of department in handling issues related to pregnancy and sex discrimination and female partner retention; and
  • when complaints do arise dealing with them proactively.

Steps as outlined above should go a long way to significantly reduce the risk of pregnancy and sex discrimination claims by partners.

In our next alert we will consider the family-friendly rights to which partners are entitled.