For GP partners there is no automatic qualification for 'employee-based' rights, but the Equality Act does provide protection for partners against discrimination. This means that whilst partners do not benefit from the right to take statutory maternity leave, they are protected against discrimination on pregnancy and/or maternity grounds.
During the protected period (i.e. from the point of conception to two weeks after childbirth) it is discriminatory to treat a partner less favourably on pregnancy/maternity grounds. Therefore if a partner were subjected to detriment, such as expulsion on account of sickness absence arising from pregnancy, that would amount to unlawful discrimination.
Whilst there is no legal entitlement to maternity leave for partners it is reasonably common for partnership agreements to make some provision for partners to take a period of maternity leave.
Key considerations for practices
The key elements to consider in relation to partners taking maternity leave are set out below.
For comparative purposes, employees are entitled to reasonable time off to attend ante-natal appointments and to statutory maternity leave for up to 52 weeks, of which two weeks are compulsory and there is a statutory maternity pay entitlement (if applicable) lasting for 39 weeks.
Before the birth, it would be reasonable for a partner to be allowed to take reasonable time off to attend antenatal appointments, although there is no legal entitlement to such leave. However, sickness absence should be treated as sick leave.
Maternity leave would start at the time of the partner’s choosing. Partnership deeds usually stipulate that advance warning of one month is given. Deeds commonly permit a minimum of 13 weeks' leave, although periods of as long as 12 months may be permitted by some practices.
Profit-share and locum costs
Whether or not the partner on maternity leave will be entitled to her full profit share during the leave is a commercial matter to be determined by the partnership, taking into account when the profits being paid out were generated. For comparison purposes, employees lose their rights to full pay during maternity leave, during which time they are entitled to maternity pay/allowance, as applicable.
Deeds ordinarily make provision for a locum to cover the maternity leave taken by a partner with the remaining partners approving the locum covering the maternity leave.
Usually, the partnership agrees to meet the initial locum costs, at least to the level that these are reimbursed. In cases of extended leave however it is not usual to require the absent partner to fund her own locum costs. If the other partners provide cover, it is reasonable for them to receive an enhanced share of profits, equal to the cost of employing a locum.
In summary, and depending on the partnership's circumstances, the partners could consider:
- An extended leave period at the partnership's expense;
- An extended leave period with the non-reimbursed locum costs paid by the absent partner; or
- A further extended period with the partner relinquishing her profit share to be divided among the remaining partners.
However, do get legal advice as the law in this area is untested and a partner could raise a claim of sex discrimination arising from an unequal distribution of profits during/after maternity leave.
Whatever the agreed period of leave, it is imperative that the absent partner actually returns to fulfil all her former duties when it ends. Most partnership deeds stipulate that a partner who fails to return at the agreed time may be expelled.
There is always the potential for upsets when agreeing or rejecting maternity leave entitlements but recognition of the partnership's position in the deed can prevent niggles developing into disputes.
Employed fathers are entitled to two weeks' paid paternity leave. In partnerships, this entitlement is discretionary but it is becoming increasingly common for male partners to be granted at least one week's paid paternity leave.
Flexible working/Shared parental leave
While flexible working may be achieved through negotiation, it is not an entitlement for partners. For example, partners cannot be required to accommodate new flexible working arrangements, such as a part-time working following maternity leave but it would be prudent for partnerships to consider any such requests carefully and be able to justify the rejection of a request.
A new optional system of shared parental leave was introduced in 2015 allowing eligible employed parents to share maternity leave and pay.
Whilst not legally obliged to do so partnerships may wish to consider whether similar flexible arrangements could be beneficial to them by allowing them to retain or attract new partners. This is a new and developing area and therefore it would be prudent to take legal advice on implementing/amending partnerships deeds to allow for greater family-related flexibility.
- Lynne Abbess heads the Professional Services Group at healthcare specialist solicitors Hempsons