Answer by Laura Livingstone

As you correctly say self-employed workers are unfortunately not entitled to the same maternity rights as employees.  Therefore in the absence of any express agreement (whether written or verbal) with the company it is unfortunately under no legal obligation to keep your job open for you once you have had your baby. Having said that, as you have run your nine courses successfully over the past three years surely the company would wish to keep you as one of their workers. 

I would suggest that you ask the company how long they are willing to keep your position open for and to come to an agreement with them preferably in writing.  They may be willing to keep your position open for six to 12 months in line with maternity provisions for employees as set out below. You could also suggest a phased return to work if this suited you. If you are not able to reach an agreement with the company you may wish to obtain additional advice in respect of your work status.  I say this because workers are sometimes actually employees rather than self- employed.  If you are able to show that you are in reality an employee you could argue that you are entitled to maternity rights under employment legislation.

Just so that you are aware employees are entitled to take up to a year off in terms of maternity leave.  Maternity leave consists of Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML). OML is for the first six months (weeks 1- 28).  If you return  to work before the end of OML you would be entitled to return to the same job in which you were employed before your absence.  AML is for the remaining six months (weeks 29 - 52). You would be entitled to return to a different suitable job if it is not practicable for you to return to exactly the same job. You would most probably be permitted to return to nine meetings which could fall on different days and at different times or your job could be changed slightly. Several factors are taken into consideration in determining whether a worker is an employee rather than self- employed such as whether you are permitted to provide a substitute to carry out your sessions if you are sick or on holiday.  If you are not able to, you would veer towards being an employee.  

If you are obliged to accept the nine sessions each week and may not choose the hours you work, again you would veer towards being an employee. I also understand that you receive holiday pay from the company.  I am surprised by this as this is a benefit usually only received by employees. The downside for being an employee rather than self-employed is that self-employed workers pay less tax.  If HMRC discovered that you were in reality an employee they could seek to recover the shortfall in income tax and National Insurance contributions from you since you started with the company. As stated above I consider that the best course of action is to remind the company as to how successful your sessions have been in the past in order to reach an arrangement with them so that you may continue your sessions in future.  You may wish to consider the maternity leave provision for employees when negotiating the amount of time you may take off. I hope the above assists with what is a difficult situation.

Laura Livingstone is an employment lawyer for Davenport Lyons in London. Her practice focuses on contentious and non-contentious employment work, but she leans towards the non-contentious.  She has advised a wide variety of corporate clients in all areas of employment.