Even as a freelance, if you work shifts you may have employment rights
Your rights at work
Freelances are gradually realising that under
certain circumstances they may have employment rights of which
they were previously unaware. Freelance Organiser John Toner
told the LFB December meeting about these.
The impetus for freelances' interest is the
publicity given to the European Court of Justice ruling last
summer on a case brought by our sister union in broadcasting,
forced the Government to remove a 13-week qualifying period for holiday entitlement.
Media reports of BECTU's success invariably used the
word "freelance". But it is more accurate to use the
word "worker", as defined in the 1996 Employment Rights
Act, defining who may qualify:
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.
A "worker", then, is either an employee, or a
self-employed person who works regularly for a particular client
under specific direction. The genuinely self-employed who are
pursuing a business activity on their own account are excluded
from this definition.
So, for example, people who regularly work casual shifts would
normally meet this definition. Freelance contributors of
occasional photos or articles are unlikely to satisfy the
Holiday pay is the issue that most members have become
excited about. Under the 1998 Working Time Regulations every
"worker" acquired the right to a minimum of
20 24 days'
annual leave, pro rata for part timers. This was a momentous
occasion. For the first time, workers in this country had a legal
right to paid holidays.
It wasn't all good news. The Tories had stalled this legislation
for a number of years and New Labour had promised to implement
it. When they did, they added qualifications that weakened down
the law's intent. One of these was a 13-week qualifying period
that made it difficult for most freelances to accrue holiday.
That changed in October, and from day one a "worker"
begins to accrue paid leave.
Each month a worker acquires one-twelfth of the annual
entitlement. In the course of a year, someone working five days
per week accrues 20 days holiday; someone working three days per
week accrues 12 days.
Employers have begun accepting this. Those who resist can be
forced to comply through an Employment Tribunal.
Important point: the Working Time Regulations are Health &
Safety legislation and are designed to ensure that workers
receive adequate rest. I mention this because many people think
the law is about holiday pay - i.e. more money. It is not. It is
about paid time off. So, an employer is not necessarily required
to pay you more money, simply to make sure that you are paid for
Equally important to holidays, of course, is the right not to
be unfairly dismissed. The notion of dismissal may sound odd in
relation to freelance "workers" but, as explained
already, some freelances are engaged in what amounts to an
employment relationship, although they are not officially
A "worker" who, for instance, has worked regular
shifts on a weekly basis for 12 months would acquire the right to
be protected against unfair dismissal. There are a number of
legal precedents for this and even more cases that have been
settled out of court.
I should add that we have also had failures in other cases.
Sometimes we have to take a legal case in the belief that we are
right in order to test whether we are right.
There is an urban myth which says that once a freelance has
worked as a regular casual for 12 months the company is obliged
to offer them a staff job with all the attendant benefits. This
is simply not true. The right not to be unfairly dismissed is not
the same as the right to a staff job.
The concept of unfair dismissal, of course, implies that there
is such a thing as "fair dismissal". This is not a
question of my personal opinion, these are legal terms.
For a dismissal to be fair, a proper procedure must be
followed. Since September 2000, all "workers" have had
the right to be accompanied at a disciplinary or grievance
hearing by a companion of their choice. This means that a union
rep or full-time official can represent members even in
A "worker" who is denied this right and is dismissed
would almost certainly win a Tribunal claim for unfair
At present, the 1999 Regulations permit employees to take a
maximum of 13 weeks unpaid leave over a period of five years.
The Government is currently proposing that "all
parents" with children aged under 5 as at December 15 1999
will be entitled to this leave. Unfortunately, the leave will
The new Employment Bill will improve maternity leave, but this
will still only apply to employees. The Maternity Rights Alliance
has recently begun discussing a campaign to create a legal right
to maternity leave for "atypical workers". I attended
the initial meeting and Freelance Industrial Council agrees that
this is something the NUJ should support.
This is expected to be a long haul campaign.