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Protections for freelancers during pregnancy and maternity

Advice on protections for freelance and self-employed musicians who are pregnant.

Last updated: 20 July 2022

If you are self-employed, you are entitled to:

  • Basic health and safety protection. An organisation is not only obliged to safeguard the health and safety for its workforce but also in respect of the risks to the health and safety of persons not in its employment arising out of or in connection with its business and activities. This means that an organisation or work-provider needs to take steps to carry out a risk assessment, including identifying any risks to new and expectant mothers, and do all that is reasonable to remove or reduce any risks.
  • Maternity allowance (if you meet the qualifying conditions).
  • Protection from discrimination:

Discrimination can include being treated less favourably because of your pregnancy and/or maternity, harassment and other unfavourable treatment.

The law says that it is pregnancy discrimination to treat a woman unfavourably on the grounds of her pregnancy or because she wants to take or has taken maternity leave.

Unfavourable treatment can include the refusal of work, training, attendance at meetings with certain clients or customers or other unfair treatment because of pregnancy, pregnancy-related absence or illness, or for taking time off after childbirth.

Who’s protected?

As a freelancer, contractor or self-employed person it’s unlikely that you will be protected specifically against ‘unfair dismissal’ (as that applies only to traditional employees) but it is possible for you to be protected against work-based discrimination law.

This protection applies to ‘job applicants’, employees and agency workers, but it can also apply to freelancers, contractors and the self-employed.

There are different ways in which a self-employed person can operate, such as a straightforward freelancer type role, or within a co-operative, a partnership (such as an LLP) or within a limited company structure. The question of whether you have protection against discrimination will depend on how you operate, your own factual circumstances and the way in which you actually undertake the work on a day-to-day basis.

The first question is whether despite the fact you may be treated as self-employed for tax purposes, you are in law a ‘worker’ or ‘employee’. It’s not unusual for freelancers or contractors to sometimes be employees or workers in employment law terms. If you are classed as ‘self-employed’ or an ‘independent contractor’ but, for example, have worked for the same organisation or work-provider on a regular basis and follow their rules e.g. on uniform and timekeeping, you may in fact be an employee or worker. You can find out more about employment status and rights on our advice page.

If not, and you consider yourself to be truly ‘self-employed’ the key question is whether under the contractual relationship you have with the work-provider or organisation you are obliged to perform the work personally. This means that even if you are treated as self-employed for tax purposes, as long as you are required to perform the work personally, you are also likely to be protected against work-based discrimination.

On the other hand, if you sub-contract the work to others or employ individuals to do it, you are unlikely to be considered to perform the work personally, falling outside normal work-based discrimination protection.

However, some non-work-based discrimination protections may still apply. There is protection against discrimination against members of relevant qualifications bodies and also by trade organisations’ (e.g. an organisation of workers or any other organisation whose members carry on a particular trade or profession for the purposes of which the organisation exists). There is protection against discrimination by service providers and persons exercising public functions.

Case Study

Joanna is a freelance musician who was contracted to perform over a period of 10 months and the contract exhibited a certain amount of control over the member. For example, they had a limited right to deputise, and the member could not work for other employers during the contract without prior permission. During this time Joanna informed her engager that she was pregnant.

As Joanna’s pregnancy progressed, the engager raised health & safety concerns and questioned Joanna’s ability to carry on performing. Joanna reassured the engager that she was capable of finishing her contract and that she was more than happy for a risk assessment to be carried out and if any potential risks were highlighted they could discuss how they could be managed.

The engager told Joanna that they had not carried out a specific risk assessment related to her pregnancy but that he thought the job was very stressful and he was worried that this could have an impact on her unborn child. The engager began to pressurise Joanna into ending her contract early and replacing her with another musician who wasn’t pregnant.

Joanna tried to resolve the issue informally, but the engager was insistent that he had health and safety concerns and that ending her contract early would be better for both.

Joanna contacted the MU for advice. As Joanna considered herself to be self-employed, she thought that there was little that the MU could do to help her. After reviewing Joanna’s contract, it was established that whilst Joanna was considered self-employed for tax purposes, she did in fact have worker status primarily because she provided personal service to the engager and so would likely be protected against work-based discrimination.

The MU was able to challenge the engager on Joanna’s behalf and insist on a risk assessment. The risk assessment did not highlight any risks to Joanna or her unborn child. Joanna was able to complete her contracted performances in full and received an apology from the engager.

The engager now understands that any concerns must be addressed by a risk assessment that includes accurate information about what the risks are and how they can be managed.   

To talk about discrimination in more detail, contact your MU Regional Office.

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