As a franchisee, you are in business on your own account and you are not automatically afforded the same rights you would have as an employee, such as the right to take maternity leave.
However, it has become more common for some franchises to be promoted to prospective franchisees as ‘family friendly’ on the basis that they can be operated part time to work around family commitments. These can be of particular interest to women who are trying to get back into work and need to work child friendly hours – or to those women who are planning to grow their family in the near future.
Family friendly hours
Prospective franchisees who are looking for part-time franchises with family friendly hours should always check:
- what the franchise agreement says about the minimum hours the business has to be operated;
- what the franchise agreement says about performance targets (will these be achievable on part-time hours?); and
- whether there is a clause requiring the franchisee/individual to devote their full time and attention to the operation of the franchise.
If there is any doubt at all over the commitments in the franchise agreement you should take legal advice and ask for a side letter to the franchise agreement confirming what you have been told about the hours of operation, targets and whether the business can be operated on a part-time basis. You must not rely on what you have been told verbally if the written terms of the franchise agreement contradict this or are silent on it.
Maternity support
Most franchise agreements do not typically contain express contractual provisions dealing with what happens when a franchisee/the individual who operates the business day to day becomes pregnant during the term and needs to take leave from the business.
Under the standard terms of a franchise agreement, generally the franchisee would not be able to simply cease carrying on the business in order to take maternity leave as that would likely place them in breach of the terms and at risk of termination.
Whether or not you’re able to take maternity leave without breaching your contract, you’ll need to discuss the coming months with your franchisor. You may need their permission to step back, hire a manager to take over your duties (if financially viable) or outsource tasks.
If you are told by a franchisor that they will assist you through maternity leave and that you will be able to take maternity leave as necessary, you should have this confirmed in a legally binding side letter along with how this is proposed to work. Without this, there may be little protection from a breach of contract claim if you cease operating the business.
In summary, the best advice for a prospective franchisee is to:
- check the terms of the franchise agreement carefully;
- have it reviewed by a solicitor experienced in reviewing franchise agreements; and
- have any clarifications/agreements dealing with maternity and family friendly hours set out in a legally binding side letter at the outset.
If you are thinking of a taking on a franchise and would like a solicitor to look over your franchise agreement please contact me.
This article first appeared in ‘WorkingMums‘.