Freelancers’ Questions: Can a client’s new director just change my work hours?
Freelancer’s Question: My freelance contract states “paid at a rate of £‘x’ per hour, with the work expected to take up to ‘y’ hours per week on average, with additional hours as mutually agreed.”
The contract goes on to say I can “choose when hours are worked”.
My understanding was that the weekly hours (‘y’) were a guideline, due to the use of words “expected” and “on average”.
Unfortunately, a newly-hired director who I report to views the expected hours per week as fixed. In fact, the director has proposed that going forward I will work set hours on set days.
The director even wants me to ask ‘permission’ to work outside the allocated times. How should I respond to this as, almost needless to say, it’s unreasonable and not what I agreed? The idea of fixed days completely contradicts my agreement. Am I also correct in thinking that my work hours per week cannot, contractually, be set in stone?
Expert’s Answer: To provide a full response which you could depend on, we would need to take a closer look at the contract wording -- along with any emails or other documents you have regarding how the services may be performed.
Freelancers have more flexibility, extra control, and a greater say
But from the information provided, it seems from the extracts of the contractual wording that you have flexibility in how the services are provided, the average hours worked, and when they are worked. Any additional hours would therefore have to be mutually agreed.
Generally speaking, when you are working as a genuine freelancer, you have much more control over how you run your business and the management of your working time is one aspect of that.
Mutuality of Obligations? There should not be any
Indeed, while we would need to see the agreement to issue definitive advice, usually we would expect a freelancer agreement to contain a clause stating that there is “no mutuality of obligations”, which means that the freelancer has no obligation to undertake work and the client has no obligation to provide work.
Mutuality of Obligations (MoO) is one key element which separates and differentiates a freelancer from an employee. The new director’s obligation to require work on fixed days and at fixed hours seems to be contrary to this requirement and so therefore, it may be that they are conflating the services you provide with those of an employee.
The director is increasing your IR35 risk, and theirs as the engager…
Indeed imposing working hours (which might indicate a notion of control over the freelancer), may also have unintended IR35 consequences, where the freelancer role may be deemed to be an employee one for tax purposes. If it was deemed as such, that might then have an adverse financial impact on the client and the freelancer.
It is very normal in business for roles to change and fluctuate over time, and this is why it is important to carry out a regular status determination to ensure that a freelancer is, still indeed, a genuine freelancer. With a new director, it is possible that the requirements of the role have changed for the needs of the business. As stated, to advise properly, we would need to review the agreement and also understand how the assignment is performed. For example, if it is performed remotely, using the freelancer’s own equipment, these would be signposts towards it being a genuinely freelance assignment.
Be aware, it may come down to negotiation
Ultimately, if you do not want to work the hours imposed by the client’s new director, this is going to come down to negotiation.
For example, does the contract allow you to appoint a substitute when you are not available? Perhaps another freelancer you appoint can pick up the hours you do not wish to do yourself? This lack of ‘personal service’ is similarly indicative of a genuine freelancer status where the services do not need to be personally provided by you.
However, if you really cannot agree on the hours required with the new director, you might decide to simply move on, meaning termination of the contract may have to be an option which you explore.
Finally, consider getting a legal expert in your corner if it turns less-than-amicable
It is advisable to check the termination clause in the contract for convenience or any other appropriate reason. For this area and as we said at the outset, we’d recommend reaching out to a legal expert who can study the unabridged terms of your agreement and the overall circumstances of your role, in the event that you cannot resolve things amicably with the new director. Good luck!
The expert was Nathalie Pouderoux of commercial law firm Gerrish Legal.