Freelancers’ Questions: Am I entitled to a paid holiday?
I have been working as a self-employed freelancer (not a limited company) for the same firm for eight months now, but there’s been no mention of holidays.
This article on FreelanceUK seems to say that freelancers, in some circumstances, can claim holiday pay. In the article, it mentions the worker had a contract but I don’t have a contract. I’m just on a one month's job which I’ve been verbally extended on seven times (although I do have an email confirming my start date and daily rate). So am I entitled to a holiday or, better still, a paid holiday?
Statutory holiday pay is a right that finds its origin in European health and safety legislation. In Europe, it is widely accepted that a rest from work is necessary for health reasons and this right is therefore not limited to those employed under a contract of employment.
The UK right to 5.6 weeks holiday pay is, therefore, a right that is enjoyed not just by employees but also by a wider category called “workers.”
Under the legislation, a “worker” is defined as “an individual who has entered into or works under…. any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”
The key concept in this definition is the concept of personal services. If under the freelance self-employed contract, the person who needs to provide the service is the freelance contractor and only the freelance contractor, the freelance contractor would be a worker. If what matters is the work to be done and not the person doing it, the freelance contractor doing the work would not be a worker.
In your question, you state you do not have a contract. This is not the case; the relationship between the freelance contractor and the other party is a contract provided that the freelance contractor provides their work for a fee. If the contract is not in writing, it is an oral contract. The main issue with an oral contract is an issue of evidence. If in your case, you have a paper trail showing eight months of uninterrupted work, this will be sufficient to establish the right to holiday pay. A paper trail may be as simple as a series of invoices or emails discussing the work.
In practice, if you decide to ask for holiday pay, the business is likely to refuse your request. They may attempt to say that your daily rate includes holiday pay. This practice, known as ‘rolled-up holiday pay’, is illegal. Businesses must pay holiday pay at the time when the holiday is taken or on termination of the contract if the contract is for a short period.
There is also a risk that the business will take offence at your request; decide that you are a problem and consequently end to the relationship. If you can show a direct causal link between the termination of the contract and your holiday pay request, you would be able to claim that you have suffered a detriment as result of exercising your right under the Working Time Regulations, and you might be able to obtain damages for the termination of the contract in an employment tribunal.
I would recommend that if you do decide to request holiday pay, you do so in writing as you will need evidence if things go wrong after the request.
The expert was Julie Calleux, an employment lawyer at EmployEase.
Editor’s Note: The comments in response to this Freelancer’s Question are for general guidance purposes only. Neither FreelanceUK nor the contributor accepts liability for any direct or indirect loss arising from any reliance placed on the reply.
1st June 2012