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Blake9

Am I a freelancer or employee?

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Evening (first time poster....),

 

I've just completed a 3 month full-time contract where I was paid a wage at the end of each month. I was paid using PAYE.

 

There isn't anywhere in my contract which says I am a freelancer, however my employer told me to take 6 days off unpaid leave as there wasn't enough work at this stage of the contract to have me come in.

 

I was very surprised they asked me this as I thought I was a full-time employee, not a freelancer (which is what they said I was).

 

If I have known I was signing a contract as a freelancer, I would have negotiaged it quite differently, such as being paid any over-time (I worked past 1am for them and regularly past 8pm), and a more competitive daily rate.

 

I've done a little bit of research so far to determine whether I fall into the catagorie of freelance or employee and it seems I am an employee. Business cards were printed for me, had a fixed desk and computer, email set up and was put on the internal phone list.

 

I don't want to hinder my chances of getting a good reference from these people, however they owe me 6 days and (I think) 4 bank holidays - and that is a fair bit of cash.

 

Any advice most welcome.

 

Thanks.

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Right - so no one has any advice for me?

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copied and pasted from CAB website:-

 

Are you an employee or self employed?

 

It is very important to find out what your employment status is. Many employment rights, such as the right not to be unfairly dismissed, and the right to redundancy pay, rely on you being an employee.

It is common for an employer to call someone self-employed, or a ‘casual worker’ or a ‘trainee’, when that person is really an employee. Employers do this in order to avoid having to pay tax and national insurance for their employees and to try to avoid them having employment rights. It is irrelevant what your employer calls you, whether you are known, for example, as self employed, an agency worker, or a casual worker. In addition, just because you pay tax and national insurance as a ‘self-employed’ person, it does not automatically follow that you are actually self-employed rather than an employee. What matters is what happens in practice about how you work, who decides what work you do and what you are expected to do by your employer.

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How to tell if someone is an employee or not

 

The following factors will all help you decide whether you are an employee or self-employed:-

 

  • does your employer tell you what work to do and how to do it (even if you are left alone to actually carry out the work). Does your employer provide you with work, or do you have to go out and find your own work to do. If your employer controls the work to be done and provides the work, you will be an employee
  • how you are paid. If you are paid a regular amount of pay at regular intervals, rather than being paid per job done, this indicates you are an employee
  • who is responsible for getting the work done. If you have to find someone else, such as a sub-contractor or a friend, to do the work if you are unable to, this would indicate you are self-employed. If your employer finds someone else to do the work if, for example, you are off sick, this would indicate you are an employee
  • who provides tools and materials to do the work. If your employer is responsible for supplying main tools and machinery and materials, with you responsible for supplying only a few of your own tools, you are likely to be an employee.

If, after reading through the factors under the heading How to tell if you are an employee or not, you think you are an employee, you will have a contract of employment. This does not have to be written down. A contract of employment is agreed between the employer and the employee and can be a verbal contract. See below.

If you are still not sure whether or not you are an employee, you should speak to an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on openinnewwin.gifnearest CAB.

 

 

 

 

 

 

looks like to me you are an employee, i would raise a grievance with your employer

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Yeah I spoke with a lawyer on the phone today and he said I should look at the Working Time Regulations clause.

 

I'm wondering also, if I should get in touch with the head of finances and let them know that I'm thinking of writing a grievance letter and at the same time outlining my concerns.

 

Good idea or not such a good idea?

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Clarify your status first with your employer and read through the contract that you signed. Yes it is better that you contact whoever is assigned to answer your questions just to ae sure you get the information right and the grievance letter could be your last resort if things are not clarified by the company.

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Great - thanks for your advice.

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I don't suppose you were working for an agency at a companies premesis were you?

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I had a recruiter find me the job. So was placed by them, however paid by the company on the last Friday of every month just as the rest of the office was.

 

The company paid PAYE and deducted my tax.

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Did the contract have an expiry date as if it did then you were on a fixed term one. Also look out for the term "Contract for services". If not then you should be considered as a full time permanent member of staff. If on fixed term, then it's possible that the request is legal. It might be that they are trying to avoid continuity of service as if I remember correctly they can't renew a fixed term contract more than twice without it becoming a permanent position.

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Yes it was a fixed term contract. Nothing in the contract about "contract for services".

 

If the other employees are given bank holidays as paid days then would I be entitled to those days paid as well? Even thought I had been there for only a month?

 

If legally, I am considered an employee, can the employer tell the employee they are not needed for a week and that they won't be paid for the time off?

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An update:

 

I sent an email on Monday to the financial controller to summarise points outlined on the direct.govt website as to why I was technically an employee and not a freelancer and thus why I should be paid for the 4 bank holidays and the holidays I had accrued.

 

I received a prompt reply offering to pay me 6 days which included the 4 bank holidays. I am reasonably happy with this outcome, however he did not admit that I was technically an employee and said there was a fine line between a contract for services and a contract of services.

 

My only querie now though is that if I worked from 25th Mar to 5th June with 6 days enforced leave without pay shouldn't I be paid more than 6 days?

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