Reply to: Advice about pregnancy?

[expat]

The end client is not your employer, your Ltd company is.
Once you get your head round that the rest of it becomes simpler.

I think so too. However I am not responsible for the possibly illogical thoughts of HMG, HMRC, GB, TUC, DWP, judges, etc....

[expat]

Well I disagree. Discrimination and employment protection/rights are very different things.

Let's assume you are are black Irish gay Muslim. What you are in effect saying is that it is perfectly ok for your clients (and their staff) to refer to you as the "Bantu Leprecoon Katwa Fudgepacker".

No, it is not, because that is between the client and you. The contract is not between the client and you.

[Mustang]

I was worried about this thread at when I read the title......! I am glad I actually read the contents...!!

FWIW, I claimed SPP for both my kids.

[othello]

I had a similar experience in 2006, I was in 1yr contract, got the contarct through an agency and billed through my LTD company. 7months into the contract I notified my manger that I was 12weeks pregnant, and that I was happy to carry on till the end of my contract in feb 07 ad baby wad due Apr 07.
A week after telling him, he called into a meeting room and told me my services were no longer required as the level of support I provided was inadequate, he asked me to leave the same day even though I had 4wks notice on my contract. (I got paid for that)
Cut very long story short, a solicitor friend adviced and supported me, took the case to tribunal on sex discrimination grounds against both agency and and company as I was regarded as a 'Worker' of the company.
I had a very good case, because the company couldn't produce any documentation to show that there were complaints about my work...
Anyway about a couple of months before the hearing, I settled out of court for a very handsone 5 figure sum, and was blessed enough to pick up another 3months contract before baby came....

[TykeMerc]

Interesting thread, obviously I'm the wrong gender for this to be of direct concern to me, but I had never considered the scenario.

[SueEllen]

I looked at two sources:
1. http://www.pcg.org.uk/cms/index.php?...380&Itemid=643

The PCG state that contractors are covered under the discrimination laws.

2. According to a the law website http://www.emplaw.co.uk/ "contract workers" are covered by the discrimination acts.

A "contract worker" is an employee who is sent by his employer to do work for a third party. The third party is called the "principal" for the purposes of the [Acts]

Under the law the person/company who the contractor is doing the work for, "the principle", is liable for discriminatory acts as through they were the employer.

[ASB]

Personally I don't want contractors to be protected by discrimination laws. I'm a business. I get the benefits of being a business in my own right so I don't want protecting by the government.

Well I disagree. Discrimination and employment protection/rights are very different things.

Let's assume you are are black Irish gay Muslim. What you are in effect saying is that it is perfectly ok for your clients (and their staff) to refer to you as the "Bantu Leprecoon Katwa Fudgepacker".

Discrimination is perfectly legal except where it is specifically outlawed. I personally think that everybody should get the same protection.

[Sockpuppet]

In this particular case it was determined that the contract he was working under did not amount to making him a worker - he could come and go at a whim and it did not have the necessary control. Thus he was NOT protected by the legislation. This was specifically noted in the case as a "hole" in the legislation, assumed by the judge not to have been intentional but noted that additional legislation was needed to cover it. I don't believe it was covered by the 2005 amendments.

So where does this leave us?

- If you have a strong IR35-proof contract you lose all the protection afforded by anti discrimination laws (which is noted by the judiciary as a problem). Thus your client can abuse you as much as they like without you having any recourse other than a baseball bat. [This is immoral and unintentional in my view]

- If you have an IR35 caught contract you do not get employment protection under the employment rights acts (rightly in my view) because there is no contract between the supplier and the end client. But you DO (rightly in my view) have protection under discrimination laws.

So for the OP, if she is "fired" as a result of being pregnant then she *might* have a case under the SDA depending upon her agency contract. This will supercede the "instant termination for any reason" clause in her contract.

I think in theory you have a point re non-IR35 safe contracts. Proving it is another matter.

Personally I don't want contractors to be protected by discrimination laws. I'm a business. I get the benefits of being a buisiness in my own right so I don't want protecting by the government.

I have b2b terms and I like it. I don't want the client to think I may take them to the cleaner if they offend my quasi-permie rights.

If you become pregnant and your co doesn't have a plan in place to cover potential clients telling you to heave ho then you don't have a very strong business case.

[NotAllThere]

Thanks to everyone for all the replies, advice and good wishes! It is my first (and second!) as the scan just showed them to be twins!...

The difference between parents and non-parents:

Non-parents will say - oh, how cute, they'll be able to play together.
Parents will say - oh, poor you.

[ASB]

I'm replying specifically to the above - I'm contracting my services through an agency - so does that mean that this agency may be liable for any sex discrimination?

The *possibility* exists that you may have a claim under (I think) section 3 or section 9 of the sex discrimination act.

The legislation is such that it was intended you should be protected, however there are holes through which people can fall. If your agency contract requires personal service or shows significant control then your chances of success are much better.

This link may prove useful if you find you wish to make a claim:-

http://83.137.212.42/sitearchive/eoc...tml?page=15367

In your case I imagine you would need to name both the agency and the client as respondents.

[ASB]

I think this point is very similar to the OP's and as such...

Merit conceded.
Mind changed.

.

Ok, I think the most relevant is probably BP Chemicals v Ms Gillick.

Here is the summation:-

Roevin Management Services, an employment agency, had a contract with BP Chemicals to supply it with workers. Ms Gillick was one of those workers. She worked at BP for several years, but when she stopped working to have a baby, BP did not allow her to return to her old job. Ms Gillick claimed that her treatment was an infringement of her rights as an employee under the SDA.

The EAT found that there was no contract between BP and Ms Gillick, so she could not bring a claim under the SDA against BP as an employee. However, Ms Gillick's could bring a claim against BP for discriminating against her as a contract worker. Roevin supplied her services to BP under a contract between Roevin and BP. This made BP her "principal" and the SDA made it unlawful for them to discriminate against her.

Also the general principle for being a contract worker is simply an unbroken contract chain the the end user. [i.e. you do not have to be an agency employee]

Now, to rain on my own parade - and put you back towards your original train of thought (as also exemplified by sockpuppet):-

I introduced the racial abuse thing for two reasons. I explained the first one. The second one is also very important.

There was a case where a taxi driver was claiming racial discrimination against the client (i.e. the taxi firm not the passenger).

In this particular case it was determined that the contract he was working under did not amount to making him a worker - he could come and go at a whim and it did not have the necessary control. Thus he was NOT protected by the legislation. This was specifically noted in the case as a "hole" in the legislation, assumed by the judge not to have been intentional but noted that additional legislation was needed to cover it. I don't believe it was covered by the 2005 amendments.

So where does this leave us?

- If you have a strong IR35-proof contract you lose all the protection afforded by anti discrimination laws (which is noted by the judiciary as a problem). Thus your client can abuse you as much as they like without you having any recourse other than a baseball bat. [This is immoral and unintentional in my view]

- If you have an IR35 caught contract you do not get employment protection under the employment rights acts (rightly in my view) because there is no contract between the supplier and the end client. But you DO (rightly in my view) have protection under discrimination laws.

So for the OP, if she is "fired" as a result of being pregnant then she *might* have a case under the SDA depending upon her agency contract. This will supercede the "instant termination for any reason" clause in her contract.

[Lewis]

Doesn't I'm afraid. This is exactly why we use Ltds and agencies/clients want us to do this as it creates a legal barrier between us and them so stuff like this doesn't bother them.

You quoted the wrong person there.

[Sockpuppet]

It might make you change you mind (or at least concede some merit in my point of view ). Whether these could apply to the OP or not I am unsure. However within the act it does not seem to me as though there is actually anything to prevent the end client from being the principal, and if they are then the consequence of discrimination fall to them.

Doesn't I'm afraid. This is exactly why we use Ltds and agencies/clients want us to do this as it creates a legal barrier between us and them so stuff like this doesn't bother them.

Mrs Caruana was employed by Manchester Airport as an independent sub-contractor under a series of fixed-term contracts. When she informed the respondent that she was pregnant, they decided not to renew her contract because she would be unavailable for work at the beginning of the next contract.

The OP is employed but by her Ltd company. Doesn't say if there was a Ltd company involved but I guess there wasn't. Even if the client cancels the business contract its not affected your job.

You're job is to work for your Ltd Co. Too many people think that your contract is your job. It's not. Losing a contract doesn't mean your unemployed it just means that your company isn't earning any revenue - your job is unaffected.

Remember guys your a business - your meant to think like on.

Anyone who remembers Sayara Beg will know what i mean.

Your contract will state something such as "contract for services" not "contract of service". There is a difference. Then you get into the D&C etc.

There is a whole world of difference between the "agency workers" in those notes and the "agency" that has found the OPs LTD company a contract. No where is the OP part of the contract.

If you got rid of a plumber becuase she was pregnant then you couldn't get done under the SDA. Its a business to business affair.

You may try to claim discrimination but you wouldn't get very far.

[blacjac]

Mrs Caruana was employed by Manchester Airport as an independent sub-contractor under a series of fixed-term contracts. When she informed the respondent that she was pregnant, they decided not to renew her contract because she would be unavailable for work at the beginning of the next contract.

I think this point is very similar to the OP's and as such...

Merit conceded.
Mind changed.

.

[ASB]

Hmm some interesting stuff there and there might be something in it, however I think the TUC stuff does not apply because of what I have highligted. The OP works through a Ltd company and this is her employer. It is her Ltd that has to carry out the risk assesments and health and safety stuff, not the client.

Think about EDS placing an employee who is pregnant at a client for 26 weeks, it would be EDS who had to carry out the assesments, and EDS who would be liable for an sex discrimination, not the client.

The TUC bit is badly phrased. In that context it means employer as user. You are still coming at this from employer in the strict sense of the word in a PAYE environment. It is much wider than that under the SDA. Let's move this to racial discrimination - simply because it might make my point more visible.

The EDS employee turns up at client co. She is then racially abused. Who is responsible for that discrimination. ClientCo or EDS ? Sure she would make her complaint to EDS but ClientCo would be the respondent. [It might be that EDS and ClientCo have joint and several liability in fact]

The relevant piece of legislation was extended in exactly the same way as the SDA in order to give protection.

The legislation is quite clear. The principal is liable to for the consequences of the discrimination. Is ClientCo a principal? Still don't know, but I believe there is a good chance.

You might like to look at the three cases here for contract workers:-

http://83.137.212.42/sitearchive/eoc...age=15662#1790

It might make you change you mind (or at least concede some merit in my point of view ). Whether these could apply to the OP or not I am unsure. However within the act it does not seem to me as though there is actually anything to prevent the end client from being the principal, and if they are then the consequence of discrimination fall to them.