Do the self-employed have any protection from discrimination?

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This month our Employment Solicitor, Claire Pegg, looks at employment rights for self-employed individuals.

Self-employed individuals do not benefit from the same employment rights that are afforded to employees and workers. In particular, they are not entitled to:

• protection from being unfairly dismissed;
Statutory sick pay
• Maternity, adoption, paternity or shared parental leave and pay
• receive the 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.

The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

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 a disabled person, the company could also be under an obligation to make reasonable adjustments in order to help you to do your job. Examples of reasonable adjustments might be changes to your working environment or making adjustments to 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 don’t
• Fostering or encouraging good relations between people who share a protected characteristic and those who don’t

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.

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

Claire Pegg – Employment Solicitor

Claire Pegg