Employment Status

[Brian]

Just spotted this on the BBC News website. As you'll see the word 'freelance' does not exist!

 

What kinds of employment status exist?

 

Employees

 

They benefit from the highest level of employment protection. There must be a contract between the employee and employer requiring the employee to carry out duties personally, meaning they cannot send someone else to carry out their work. The employee must also be under the control of the employer in terms of hours, working practices and workplace rules, and be sufficiently integrated into the workplace.

 

Rights and benefits include holiday pay, national minimum wage, rest breaks, discrimination protection, whistleblowing, deduction from wages, pension contribution from an employer under auto-enrolment, a written contract of employment, unfair dismissal protection, redundancy payment, statutory minimum notice pay, maternity/paternity pay, paid time off for antenatal appointments and a right to request flexible working.

 

Workers

 

They hold an intermediate position between employees and the self-employed. There must be a contract between the worker and employer requiring the worker to carry out duties personally but the worker is not integrated or subject to as much control as an employee. If the "employer" is actually a client or customer of any business carried on by the individual, they will not be a worker, but will instead be self-employed.

 

Rights and benefits include holiday pay, national minimum wage, rest breaks, discrimination protection, whistleblowing, deduction from wages and pension contribution from employer under auto-enrolment.

 

Self-employed

 

This status carries the least legal protection. There will be a contract but there is no requirement that the self-employed worker carries out the service personally. The self-employed usually enjoy maximum freedom as to how to deliver the service and are not subject to workplace rules.

 

Rights tend to be governed by the contract rather than any statutory rights.

 

Source: Cloisters barristers chambers

[Andrew C]

Self-employed[snip] and are not subject to workplace rules.

Ummm... Maybe MANY workplace rules? Some workplace rules?

[Junior8]

Seems like the word freelance isn't the only thing missing from this digest.

[David Lee]

Freelance has never existed since medieval times except as a colloquialism (and BECTU membership card)

[kerry davies]

How can someone be "subject to workplace rules" when "there is no requirement that the self-employed worker carries out the service personally"?

 

Bear in mind that this is legal opinion and is not trying to define any role comprehensively. The fact that"freelance" does not exist is something we have debated here year after year ad nauseam.

[Stuart91]

It'd be interesting to see a self-employed worker turn up on a building site wearing flip-flops, and claim that the "workplace rules don't apply".

[sleah]

It'd be interesting to see a self-employed worker turn up on a building site wearing flip-flops, and claim that the "workplace rules don't apply".

 

Or swearing in front of the children (or staff), smoking in the playground, bringing alcohol onsite,... blah blah blah.

 

Surely so long as said person is working onsite, then workplace rules MUST apply?

 

What are they actually on about?

[J Pearce]

Legally I suppose it could be suggested that the workplace rules form part of the contract of works to be completed, rather than rules issued to an employee.

[sleah]

None of those three above really fit the chap who comes in to school to help me.

He's not "employed" by the school as such, so things such as holidays or pensions do not apply, he is responsible for his own tax and NI, so he is not a 'worker' either.

However, that description of "Self Employed" doesn't fit either. He has a contract of sorts; he comes in to work with me as directed by me. He has to "carry out the service" personally, because it's HIM we are bringing in. He could not send someone in his place, they wouldn't even get through the front door. He does not have "maximum freedom as to how to deliver the service" as I've already said, and again he IS subject to most "workplace rules".

He is self employed and invoices the school under his business name.

 

As I see it, he is much the same as any other contractor we use, except he works directly with me under my supervision rather than being left to get on with a particular job.

 

So I wonder how Cloisters barristers chambers would class his employment status? :blink:

[mac.calder]

That's still very clearly "self employed".... the client (school) has engaged [workers business entity] to provide the services of [the worker] who will be required to undertake [duties] under the direction of [your name]. Whist providing these services [the worker] shall follow all rules of the workplace. In return [workers entity] will receive [compensation].

 

Just because there is no requirement implied that a self-employed person undertakes the work personally (because the contract is between the client and the entity (the self employed persons business)) it does not mean that additional requirements can't be placed on the contract to require a specific person perform the work.

[Andrew C]

it does not mean that additional requirements can be placed on the contract to require a specific person perform the work.

But it may very well do. If the contract specifies [name] to carry out [work] at venue on [dates], substituting [other name] would be a breach of the contract.

[mac.calder]

it does not mean that additional requirements can be placed on the contract to require a specific person perform the work.

But it may very well do. If the contract specifies [name] to carry out [work] at venue on [dates], substituting [other name] would be a breach of the contract.

 

Sorry, typo, meant to say can't.

[paulears]

If his hours of work are controlled by you, and you allocate the work, and you are supervising him - then I would think he's an employee - albeit a casual one. When I go into a school as a supply teacher, the agency who give me the job believe I am an employee. All they do is send me in. I have hours fixed, but in my case, I'm not supervised, I'm not monitored, and in virtually every case, I'm unaware of any rules, or policies. I simply have a scribbled piece of paper that tells me what I should be doing. Up to me how, and to what level. That is self-employment? I actually think it is, on the old IR35 type quiz, but no - I am an employee. One agency sent me a P60 - for £240 in a year. The holiday, pregnancy and sickness rules seem to apply - well, all apart from sickness which as hours are as and when, can;t be calculated. HMRC accept this as the way it's done. With a few hours here and there, and proper invoicing, I suspect your school get away with it, but if HMRC looked closely - there are too many precedents already working.

[Jivemaster]

Though the OP may be learned opinion, I wonder about the "Worker" situation, Unless someone is compliantly employed then they have to be compliantly self employed, I don't see a third way.

 

The term "freelancer" IMO indicates a person who works for several work providers -maybe across several industries, and maybe as an employee for some and as a self employed contractor for other work providers, maybe even under a construction industry scheme for some work. Headache for the accountancy but maybe a work profile where there isn't enough of one work to feed a person all year.

[Junior8]

. When I go into a school as a supply teacher, the agency who give me the job believe I am an employee. All they do is send me in. I have hours fixed, but in my case, I'm not supervised, I'm not monitored, and in virtually every case, I'm unaware of any rules, or policies. I simply have a scribbled piece of paper that tells me what I should be doing. Up to me how, and to what level. That is self-employment? I actually think it is, on the old IR35 type quiz, but no - I am an employee. One agency sent me a P60 - for £240 in a year. The holiday, pregnancy and sickness rules seem to apply - well, all apart from sickness which as hours are as and when, can;t be calculated. HMRC accept this as the way it's done. With a few hours here and there, and proper invoicing, I suspect your school get away with it, but if HMRC looked closely - there are too many precedents already working.

 

Before the days of agencies most supply teachers were recruited by word of mouth or most often by phoning colleagues who'd just retired. Back then I believe they invoiced but were paid on a fixed scale based on Burnham. I was never quite sure what their status was but it was a fact that there was a large body of teachers who were on permanent supply in various schools but not on contract. It suited both sides. Towards the end of my time this rather cosy arrangement was breaking down due to changes in employment law and it suited schools to unload the whole business on to an agency who dealt with all the paperwork. This would only work in school settings if you were an employee of the agency I think.