Self-employed Protection Discrimination

Morrish SolicitorsEmployment, Site News, Site News, Site News

Do the self-employed have any protection from discrimination?

Self-employed individuals do not benefit from the same employment rights that are offered to employees and workers.

What are the self-employed not protected from?

Self-employed individuals are not protected by the following:

  • Protection from being unfairly dismissed
  • Statutory sick pay
  • Maternity, adoption, paternity, or shared parental leave and pay
  • Receiving national minimum wage
  • Rest breaks and paid holiday
  • Protection against unauthorised deductions from pay

They may, however, be protected from discrimination because of a protected characteristic under the Equality Act 2010. This is because the definition of employees under the Equality Act is wider than its general use in employment law.

What are the protected characteristics?

There are 9 protected characteristics:

  1. Age
  2. Marriage or civil partnership
  3. Race
  4. Sex
  5. Disability
  6. Gender reassignment
  7. Religion or Faith
  8.  Pregnancy or Maternity
  9. Sexual Orientation

1. Age Discrimination
The Equality Act 2010 protects people of all ages. An employee or prospecting employee cannot be treated differently because of their age. Typically, it is because they are ‘too old’ but there are cases of discrimination because someone may be ‘too young’. If someone is experiencing unfair treatment based on their age, they are suffering from age discrimination.

2. Marriage or civil partnership discrimination
People who are married or in civil partnerships are protected from discrimination because of the Equality Act 2010. Someone cannot be discriminated against because of a recent marriage for example. Some people do not qualify under this, they are:

  • Single people
  • Someone who is divorce, or their civil partnership has dissolved
  • Someone whoo is engaged but NOT married
  • A couple living together but NOT married

3. Race discrimination
According to the Equality Act 2010, race includes colour, nationality and national or ethnic origins. If someone is treated differently based on their race, then they will be a victim of race discrimination.

4. Sex Discrimination
As men and women are protected under the Equality Act 2010, it is against the law to create different rules for men and women. They must enforce the same rules for both sexes to ensure that there is no sex discrimination being committed. Salary, job shortlists, training and promotion should consider all
sexes and not favour specific genders.

5. Disability Discrimination
The Equality Act 2010 has made it more convenient and easier for someone to display that they are disabled. An individual can claim disability if they suffer from a mental or physical impairment creating a ‘long term’ and ‘substantial’ impact on their capability to perform a task in the workplace.

Employers must make sure that they provide reasonable modifications to allow the person with a disability to perform their job without any detriment created from their disability.

6. Gender Reassignment Discrimination
Gender Reassignment discrimination makes it unlawful for someone to be treated differently because they are either proposing to reassign their gender, are in the process of reassigning gender or have completed their gender reassignment.

7. Religion or Belief Discrimination
It is illegal for an employer to discriminate against a person because of their beliefs or religion. This includes major and minor religions and includes sects and denominations within any religion. A person without religion is also protected from discrimination and cannot be treated differently than people with a religion or belief.

8. Pregnancy and Maternity Discrimination
Pregnancy or maternity discrimination covers women who are either pregnant, breastfeeding or have lately given birth. Women can take 52 weeks leave due to their pregnancy and when on maternity leave, they must be alerted to any transfers, jobs, or promotions so that they can apply if they wish to.

9. Sexual Orientation Discrimination
Under the Equality Act 2010, it is illegal for an employer to discriminate against a person based on their sexual orientation. This includes someone who is:

  • Gay
  • Lesbian
  • Heterosexual
  • Bisexual

What are self-employed protected from?

The Act states that those who are under ‘a contract of employment, a contract of apprenticeship or a contract personally to do work’ are protected. A self-employed individual may, therefore, be covered if he or she carries out personal service i.e. typically, where he or she is not permitted to sub-contract any part of the work or use others to do it.

If you fall within this definition, then it would be unlawful for a company to discriminate against or victimise you because of a protected characteristic. Acts of discrimination may include not renewing your contract or not allowing you access to certain benefits.

If you are disabled, the company could also be under an obligation to make reasonable adjustments  help you to do your job. Examples of reasonable adjustments might be changes to your working environment or adjusting your working hours.

A further source of protection for self-employed individuals may be available where they are engaged by a public authority, such as a school. This is because all public authorities must comply with the “public sector equality duty” which means that when carrying out their functions, they must have due regard to:

  • Eliminating unlawful discrimination
  • Advancing equality of opportunity between people who share a protected characteristic and those who do not
  • Fostering or encouraging good relations between people who share a protected characteristic and those who do not

This duty applies to the treatment of a person with a protected characteristic (e.g. a disability), whether they meet the employee test or not.

A private organisation will also be required to comply with this duty if it is considered to carry out a public function and the service provided is partially or fully funded by the government.

Most frequently asked questions from self-employed people
If I am self-employed and ill, can I get paid?

If a self-employed person is ill and cannot do their job due to the illness, they will NOT receive SSP (statutory sick pay) from the government but they may be able to claim employment and support allowance from the Department for Work and Pensions.

If I go on holiday, can I get holiday pay if I am self-employed?

If someone is self-employed, then they DO NOT have a right to holiday pay. However, if they work for a client who values them as an employee, then you may have the right to holiday pay.

Can I get maternity pay if I am pregnant and self-employed?

If a woman is pregnant and has been self-employed for at least 26-weeks before the baby is due, then they may be able to claim Maternity Allowance.

If you require advice as to whether you may have a discrimination claim, then please do not hesitate to contact us.

Claire Pegg

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