Freelancers' Questions: Can I take paid sick or holiday leave?

Freelancer’s Question:

My contract seems fairly typical for a freelancer as it says that it is not an 'employment contract' but a 'provision of service', and that my relationship to the end-user is that of ‘independent’ freelancer.

Can I take paid sick or holiday leave

The current job I am doing is on a rolling basis. The work can be limited and averages out to be around 18 hours per week. It's my only source of income and the job doesn't require my services on a regular basis with guaranteed work. So my question is, do I have the right to any kind of paid sick leave or paid holiday leave, as there is no mention of it in my contract. 

Expert’s Answer:

Your working status

Assuming from the information you have given, we assume that you consider yourself as self-employed rather than running your own limited company for employment law purposes. 

Your status as self-employed is not something you or the engager can decide and dictate. Your contract terms need to reflect your relationship with the engager and your nature of work needs to be a reflection of you being self-employed rather than an employee or a worker. From the points you have described about your working situation, it seems that you are self-employed and that is how you should class yourself with relations to the employment law purposes. 

Paid sick leave

Unless it's stated in your contract with the company, sick pay seems to be only given to employees of a company. This would then suggest that you are not entitled to sick pay from your client as you are not their employee. Moreover, it is not very likely that you would be considered to be in breach of contract if you were absent due to being sick, which would allow you to have time off when you are unwell. However, this will likely not be paid sick leave. 

Paid holiday leave 

Sick pay doesn't seem to get much more complicated than that, however, Holiday pay can be a little more complex to get your head around for both workers and companies. Paid leave is governed by the Working Time Regulations and this too all 'workers' as well as employees of a business. 

A worker is an individual contracted to provide services personally, other than in circumstances where the individual is genuinely in business on his/her own account, and the engager is not a client or customer of a business carried on by the engager.

From the information you have provided, it seems that your status is of that of a worker rather than an employee. Therefore, this would mean that you are entitled to paid leave. The length of the time may vary from 5.6 weeks on an annual basis.

If you come under the status of a worker, you would be working 'normal working hours'. So the way you holiday pay is calculated is by looking at each of the most recent 12 weeks in which you did some work. For example, if you worked for 12 weeks, but you did not actually carry out any work in the second week, you would not count this when calculating your holiday pay. However, you would then also include and extra week thirteen to include a total of 12 working weeks. This is assuming you did some work in all of the weeks from week 1 and then from week 3 all the way to week 13. 

After marking the twelve weeks that you have worked, you will need to calculate the pay you received for the average working week. You do this by dividing the total gross pay for all those weeks by 12. This will then indicate the amount you are entitled to for each week you take of your leave entitlement.

It's also important to note that the pay that you receive after immediately after 12 busy working weeks will be much higher than if taken immediately after 12 relatively slow working weeks.

Some other points to take on board are:

  • If you are deemed a 'worker' then you are entitled to paid leave. Therefore, nor you or your employer can 'contract out' you from your entitlement.
  • Save on termination of the engagement, you cannot demand payment in lieu – you have to actually take the period of leave, in order to be entitled to holiday pay.
  • you have to take your paid holiday leave when you are due to take it. You cannot carry your holiday leave forward. For example, an employee may be able to carry some holidays over to the next year, as a 'worker' you are not able to do this. 
  • You are entitled to holiday paid leave if you are a 'worker' so if your client is refusing to give you paid time off, then you can go ahead and make a complaint to the Employment Tribunal.
  • If the engager takes any action which penalises you for demanding your rights and entitlements (which in this case is paid leave) then you let them know that their actions can amount to a ‘detriment’. Which will give you the right to make a further complaint to the Employment Tribunal.

The expert for this piece is Roger Sinclair from egos.

 

27th September 2015

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