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, BECTU. This 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 definition.

Paid holidays

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 2024 28 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 time off.

Unfair dismissal

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 employees.

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.

Discipline/Grievance

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 anti-union companies.

A "worker" who is denied this right and is dismissed would almost certainly win a Tribunal claim for unfair dismissal.

Parental Leave

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 remain unpaid.

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.

© John Toner
Freelance Organiser