Your rights as a worker

What rights do you as a freelance have - for example to paid holidays or even redundancy? Depending upon your precise working relationship, possibly more rights than you imagine.

A self-employed person by definition does not have employment rights. But a self-employed person can have worker's rights.

The  definition of a worker is contained in section 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 2024 days. Each month a worker accrues one-twelfth of the annual entitlement. So someone working three days per week accrues 14.4 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 per 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. And, of course, employees have no copyright.

But someone who can prove employee status is protected from unfair dismissal. They would be entitled to redundancy pay if made redundant.

This gives me the opportunity to correct another, very popular, urban myth. A freelance who works shifts on a casual basis does not acquire the right to be offered a staff job after a year's service. I can understand why this belief has grown up. Someone who works in this way may acquire protection from unfair dismissal - but that is not quite the same thing as being offered a job.

The same applies to maternity rights. Only an employee has a right to return to work after giving birth; and only an employee has a right to contractual maternity leave that is better than the statutory minimum.

However, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 stipulate that a part-time worker has the right to "no less favourable treatment" than full-time workers. This is a relatively new law, and it has still to be tested. A worker currently has no statutory right to sick pay, but it is possible, for example, that the Part-Time Workers Regulations will provide this if tested.

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