Your rights as a freelance
John Toner, NUJ Freelance
Organiser
What rights do you as a
freelance have - for example to paid holidays or
even redundancy? Possibly more than you
imagine.
A self-employed person by definition does not
have employment rights. But a self-employed
person can have workers’ rights.
The definition of a worker is contained in
s 230(3) of the Employment Rights Act 1996 as:
‘an individual who has entered into or
works under a contract of employment or any other
contract... whereby the individual undertakes to
do or perform personally any work or services for
another party to the contract whose status is not
by virtue of the contract that of a client or
customer of any profession or business
undertaking carried on by the
individual’".
So freelances who enter into a contract to
carry out work personally and under close
direction are likely to qualify as
‘workers’. Some freelances' clients
have been spreading the story that you only
qualify if you are taxed at source through PAYE.
Perhaps because it's appealingly simple, this
story risks becoming an urban legend. But it's
false: there is no connection between your tax
status and whether you are a worker.
If you are a worker, the Working Time
Regulations mean you are entitled to benefits
that include paid holiday. You are also protected
against discrimination on grounds of race, sex or
disability.
Many freelance workers now enjoy paid leave.
The annual entitlement for a full-time worker is
20 days. Each month a worker accrues 1/12 of the
annual entitlement. So someone working three days
per week accrues 12 days’ holiday in the
course of a year.
The regulations also give you the right to a
rest period during a shift. They stipulate a
minimum rest period between the end of one shift
and the beginning of the next.
Some freelances are able to go beyond this and
establish that they are, in fact, employees. An
employee is defined as ‘an individual who
has entered into or works under a contract of
employment’. A number of tests have been
developed over the years to help in deciding
whether someone is an employee: they include
control, mutuality of obligation and
‘intention of the parties’.
A freelance who works five days
a week for one client and does no other work is
likely to meet the definition of an
‘employee’. But someone who writes a
weekly column or contributes a weekly cartoon is
likely to fail, regardless of how long they do
this particular work. If the relationship is
genuinely one of self-employment it is not
changed by its longevity. But someone who can
prove employee status is protected from unfair
dismissal. They would be entitled to redundancy
pay if made redundant.
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