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Senior Partner
Senior Partner, Solicitor
Category: Law
Satisfied Customers: 13323
Experience:  Solicitor with more than 30 years experience
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I am self-employed for tax and national insurance purposes.

Customer Question

I am self-employed for tax and national insurance purposes.

I have worked for three years for the same company and to all intents and purposes have been treated and have been expected to act as any full time member of staff would. In my department there are three 'freelancers' in total, one is still there in that capacity, the other has taken his role as a full-time position as of the beginning of this year.

We have been paid an agreed hourly rate for every hour we work, we invoice weekly for the hours completed, and then have to wait until the end of the next calendar month to get paid – on the same day of the month as full-time members of staff get paid for the month in which they are actually working.

I have had my own desk, chair, computer, phone number and email address. If we wanted any time off, we would have to request it officially for approval, so that adequate cover could be provided if necessary. And we would be expected to return to our desks on the due date back.

At no point in my employment with this company have I every received any benefits that a full-time member of staff would have done. This position is exactly the same for the other two workers.

At the end of November 2012 I was told that my services were no longer required and that I would not be returning to work after Friday 30th November. It amounted to 3 days notice for 3 years worth of work.

So, the question is, can you, in layman's terms, describe to me what information I should arm myself with when I raise the following with my ex-employer?

1. If I am in your opinion likely to be considered an employee or worker in the eyes of an employment tribunal, do I have a case for claiming 3 years worth of Statutory Holiday Pay from them?


2. Do I also have a right to claim payment amounting to one month's notice, given that my notice period was so short (and unexpected)?

I have to add that before the end of my last week, I was offered some holiday cover which amounted to a total of two weeks work in December, which I excepted. I also worked the 2nd and 3rd of January. And I'm due to go in next week, again for holiday cover - the end of that week being the time that I will most likely endeavour to broach the subject with the boss in order arrive at some form of satisfactory arrangement.

I would be most grateful for any advice and assistance you can give me in this matter, and would be only too pleased to offer you additional information should you require it...

Many thanks in advance,

Submitted: 3 years ago.
Category: Law
Expert:  Senior Partner replied 3 years ago.
Hi, thanks for you question. I am happy to assist but although you have provided quite a lot of information it would help to answer if you can give me some more.Can you tell me first the nature of the work you undertake, secondly who decides what hours you work and finally whether you report to some one who dictates what and when you do things.

Do you have anything in writing? Do you operate as company or as an individual and finally does any contract or any other agreement prohibit you from working for other people at the same time.

Customer: replied 3 years ago.

I work as a creative artworker / typesetter, laying out jobs from briefs supplied, for a variety of the company's clients (music industry / record labels), and on and using the equipment provided for me.


I would be expected to start the working day at 9.30am like everyone else, though most days, I and my self-employed colleagues would be there earlier to get on with the ongoing work.


Because of the, at most times, consistently large workload, we would be allowed to work as many hours as we liked, because we were the people generally entrusted to complete all the artwork requirements prior to the jobs going to print.


This job management responsibility though would come under the direction of one of the Joint Deputy Managing Directors, who was also in charge of the production team who would organise the repro and distribution of artwork to the individual clients or third party printers. Only recently were we informed that in order to save money we were asked to cap our hours at ten hours daily.


Despite the open-endedness of the daily working hours, it is ultimately the company MD and her joint deputies that would determine our hours, but we would be expected to work a full working day.


The only time when our days were structured differently was a two-week period about 18 months ago, when the three of us would start at slightly different times in the day so that we wouldn't have to be paid for full days. This was purely and simply a cost-cutting measure whilst incoming work was a little slack. We were all back working more than full-time hours once the two weeks were up.


As mentioned, one of the joint deputy MDs and a couple of production managers were the staff members that determined who does what and when - we would generally all work as a team to see that deadlines were met. But ultimately it was their decision if we should shelve a particular job for the time being and work on another if the deadline was a particularly pressing one.


I do not have anything in writing. I, like the other artworkers, were engaged privately and independently, and we all operate as individuals, responsible for our own tax and national insurance. Since there is no contract I would be free to do my own freelance work with other clients - but not in the full-time hours that we would be expected to fill with this employer.


For the first year and a half of working for this company, I would periodically work for another company on a freelance basis from home - but only in my own time. This other client had no links whatsoever in work or industry sector, to the one I was working for on a full-time basis.


I hope this helps clarify things, but please feel free to ask me more if you should need to...


Kind regards, Chris.

Expert:  Senior Partner replied 3 years ago.
Thanks that is very comprehensive. I am afraid it is not immensely helpful to your case for reasons I will explain.

I will deal first with the notice point. This is a pure contractual issue unless you are an employee. If you have no written contract then the terms of your contract have to be implied either form oral agreement or custom and practice. If you are paid monthly and the contract runs on a monthly basis i.e. you account for hours monthly and are paid for them monthly albeit a month in arrears then you have at least a prima facie argument that the contract is on a monthly basis . If there is evidence that this is the normal practice in your industry for free lances it would help.

Turning to the other issues, this is I am afraid much more difficult. The dividing line between an employee , a worker and some self employed is not clear cut as I think you have discovered.

the main difference between a worker and an employee is that a worker does not have a contract of employment usually that means for example they are not paid if there is no work. A lot of self employed freelancers and temporary workers fall into this category. The genuinely self employed are in business for their own account and are employed under a contract for services rather than of service. So if you had a clear and distinct art work business with more than one customer and even if paid by the time spent were hired to do specific jobs then you may be self employed but if you are expected to turn up each day and do whatever work is presented to you, you are more likely to be a worker.

Another telling factor is whether you provide your own facilities or equipment or tools. To give you an example if you pay someone for a number of hours to do gardening for you using your equipment then they will probably be a worker or an employee but if you hire someone to cut your lawn or trim bushes etc using their own equipment and you pay them for the job then they will be self employed.

I think on balance based on what you say you probably have a good claim to be treated as a worker in which case you may have a claim for holiday pay . If you could claim to be employed of course you would also have a claim for redundancy
Customer: replied 3 years ago.

Okay, thanks for that - it does seem to be a bit of a minefield, this employment status business in the UK...


To summarise - no formal and written contract - likely to be no compensation in the form of one month's notice like an employee may be due, unless I can successfully play the 'unfair, not sporting' card.


Given that I work under their guidance and with their equipment, at their desk, sitting on their chair, having my own phone and email address (both appearing against a list of staff members we are included on), and being expected to turn up for work like everyone else who is a full-time employee, and being directed in the work that we do, I have a solid argument for being considered a worker and as such could reach a settlement regarding a fair claim for holiday pay.


I should also point out that we were expected to keep a daily timesheet record of the jobs and the time spent on them during each day. These would then accompany the invoice submitted at the end of each week. Whether this has any bearing on the matter I don't know.


There was only ever one day in the whole time I was with this company that the three of us put down 'Waiting for work' on our timesheets when the tray of work was empty. They didn't like it, and they said so, but we were still paid for the hour and a half or so before jobs became available for us to work on again.


And the same has happened whenever the server has been down during the day whilst we were there. We would put 'Server down' and the amount of time before we were able to start work again. As it was not our fault that these things happened, we always argued if the point was raised that we were expected in for the day, and should be paid for at least the basic eight hours since we have given up our time to work for them and are there at their behest.


At no point has any money ever been deducted from our payments for the invoices we have submitted due to any of the above, so in that regard we are more like employees, but if not, it strengthens in your opinion, my argument that in the face of an employment tribunal, the case for being considered a worker is reasonably sound.


Please give me your final thoughts, and I'll leave you to enjoy your weekend. I would like to thank you for your time and consideration, and hopefully I can resolve this situation amicably with this employer.


Kind regards, and thanks again,



Expert:  Senior Partner replied 3 years ago.
I agree with most of what you say except on the issue of notice. There is clearly a contract and it can only be terminated on notice. The issue is what is the period to be implied if there is no agreed. Notice. If there is no custom and practice then it must be reasonable notice in the circumstances. If you did weekly time sheets then perhaps a week is justified by I think you have a good argument to say reasonable notice for a monthly arrangement after three years. Is a month.

I would approach it by starting asserting that in reality you are an employee and even if not you are certainly a worker.

They may be sufficiently concerned about a claim for unfair dismissal that they will make a sensible offer.

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