Maternity suspension

Q: A member who is self-employed for tax reasons has been put on suspension for medical reasons because she is pregnant. Is she entitled to be paid and does the company have to carry out a risk assessment?

A: The right to be paid while suspended on maternity grounds comes from section 66 of the Employment Rights Act 1996 (ERA), under which an employee is entitled to be paid unless she has unreasonably refused to accept suitable alternative work. However, this only relates to employees.

If your member is self-employed “for tax reasons” only, she may actually be an employee in the eyes of the law. If she is treated in all other respects as an employee — for example, she is under an obligation to turn up for work and her employer is obliged to provide it, and she is subject to the same management control as other workers — this would indicate that she is in fact an employee.

However, if she has deliberately entered into an arrangement for the purposes of avoiding tax, this may make her contract illegal and she may be unable to enforce any employment rights arising from it (see the LRD booklet Contracts of employment — a legal guide).

The requirement to carry out a risk assessment for new or expectant mothers under regulation 16 of the Management of Health and Safety and Work Regulations 1999 does apply to self-employed workers.