Rory McPherson of employment law specialists Trade Union lawyers Thompsons Solicitors and Solicitor Advocates outlines the UK legislation which defines the differences between the rights of a freelance worker or independent contractor and those of an employee.
	Freelance Workers - the Legislation

 

	The Legislation
	In the UK the most important piece of legislation relevant to workers' rights is the Employment Rights Act which came into force, largely, in August 1996.
	There are however additional pieces of legislation which are of importance to a freelance worker, in particular the Copyright Designs and Patents Act 1988. An order for work will often narrate that that the worker "waives all of his moral rights" as defined by and in respects of any acts or anything done with the Company's authority in relation to any Intellectual Property which is the property of the Company by virtue of this clause.
	This is because the 1988 Act refers to Moral Rights which are briefly:
	1. the right to be identified as the author of a work
	2. the right not to suffer derogatory treatment of a work
	3. the right not to have works falsely attributed to another.
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	The Freelance worker, unlike an employee, is in general terms a person in respect of whom the Company purchases the products of his or her labour, rather than right to the get the work done.
	The Freelancer is thus independent from the employer in the sense that, in theory at least, he or she is responsible for making their own decisions in performing the job.
	In legal terms this severely restricts the remedies open to a Freelancer in the event that the Company refuses to commission work. Unlike the situation of an employee who can, in certain instances, claim unfair dismissal if the Employer decides not to utilise his or her services beyond a certain point.
	The Courts will on occasion decide to lift this artificial distinction and regard the Freelancer or independent contractor as an employee. Instances of this happening are however rare and tend only to occur when the reality is one of Employer & Employee and where the Company retains a high degree of control over the individual. Or where, for instance, the individual does not really carry on business on his or her own account.
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If you are considering acting as a Freelancer you should therefore consider making enquiries with a Solicitor or other source of advice as to what the terms offered to you actually mean before you start work and certainly before any dispute arises.
An employee has certain rights under the Employment Rights Act 1996 such as the right to have a contract of employment identifying the Employer, the date when the employment began, details of the scale of remuneration, the title of the job, and details of the length of notice which the employee is bound to give and is entitled to receive in the event of termination. Plus the right not to have unauthorised deductions from wages.
A Freelance Worker has none of the above and must therefore seek written assurances as to what is on offer and from whom, such as what is the payment on offer (assuming the Freelancer chooses to do the work), whether payment is contingent on the Company's being satisfied as to the quality of the product produced and whether there is a specific deadline.
It is often useful to establish whether there exists an organisation which will offer support such a Trade Union or a trade group such as the Society of Authors.
Rory McPherson...

 

Rory McPherson of employment law specialists Trade Union lawyers Thompsons Solicitors and Solicitor Advocates can be contacted via the Thompsons website at www.thompsons-scotland.co.uk   Rory also writes for  on the worst case scenario as to what contractual pitfalls can await the unsuspecting freelancer.  The Power of the Economic Bully