Answer by Tracey Guest

You have explained that you work for a  Temporary Employment Service, which I understand provides temporary cover for the institution you work for. I understand that you have been working as a temp and this means that you are available on an on call basis, so that you are contacted when work becomes available, but there is no obligation on you to accept the work. The employment rights that you are entitled to are dependent upon whether you are an employee or not.

An employee has a different status for income tax and national insurance purposes than a self-employed person, and has important statutory rights accruing from the relationship of employment, for example, the right to protection from unfair dismissal and the right to a redundancy payment etc. These statutory rights do not apply to a self-employed person.

The first place to start to determine whether or not you are an employee with full employment rights is the contract that is in place between the institution and yourself and to see what it says in that contract about your employment status. There are also other factors which would be considered to decide if you are an employee, for example, are you under a duty to follow the reasonable instructions of the institution, are you provided with the necessary equipment so that you can carry out your job, do you have set contractual hours, are you paid under the PAYE system with the institution deducting income tax, do you receive holiday pay? If the answer to these questions is yes, this assists to demonstrate that you are an employee.

You have explained that you have worked for over 2 years for the institution. Assuming you have worked for the institution with no breaks in this time (except if you have taken a paid holiday break between assignments), this also helps to demonstate that you an employee, with employment rights.

If the above points to you being an employee, you should speak with your manager to note the same and explain why. If your manager denies that you are an employee, you should obtain further legal advice.

If you an employee, you are entitled to take 52 weeks maternity leave, regardless of your length of service, which is made up of 26 weeks ordinary maternity leave (OML) followed by 26 weeks additional maternity leave (AML).

To qualify for OML and AML you must comply with certain requirements, eg notifying your immediate manager by the end of the 15th week before your expected week of childbirth.

As an employee, you qualify for statutory maternity pay if:-

a) at the end of the 15th week before your expected week of childbirth you have completed 26 weeks continuous service and your average earnings at the relevant time exceed £95 per week and
b) you give notice to your manager of the date you wish your statutory maternity pay to begin, at least 28 days before that date, or if that is not reasonably practicable, as soon as is reasonably practicable.

NB. If you are not entitled to statutory maternity pay, you may be entitled to maternity allowance. You should pursue this with your local benefits agency.           

I understand that you work part time, two days a week - this makes no difference to my advice set out above.

Tracey Guest is head of employment and a partner at Slater Heelis Collier Littler in Manchester. She specialises in employment law and is also a working mum.