Is this fair?

[Guest lightnix]

So had I but apparently that isn't the case, in Redrow Homes (Yorkshire) Ltd v Wright, Roberts and others [2004] it was held:

 

a person (such as a tradesman in the building industry) who is not an employee will count as a worker for purposes of the Working Time Regulations, 1998, SI 1998/1833 if the following three conditions are fulfilled:

the work must be done under a contract;

 

the individual must by that contract "undertake to do or perform personally any work or services"; and

 

he must do so for another party to the contract who is not a customer or client of any business undertaking which he carries on.

 

It is widely believed that most self-employed freelancers within the media industry (closely related I'm sure you'll agree) fall into this area, although AFAIK there hasn't yet been a case where this has been proved (I may be wrong in this)

Ah yes, but you're talking about the Working Time Directive, I'm talking about IR56 / IR35 Tax Regulations. I'll say it again: if you are considered a worker under the WTD, it's a fairly safe bet that you'll be classed as an employee by HMRC. If you have to perform the work yourself and cannot send somebody to perform the work in your place, then you cannot be considered self-employed - it goes against the whole ethos of self-employment.

 

A few years ago, BECTU started putting it out that "all freelancers" were entitled to holiday pay - which wasn't true and caused a lot of confusion. When I mentioned this to a client, their immediate response was, "If it's true, we'll just drop the rates we pay to freelancers to make up for it."

 

So you have to ask how far it's worth pushing this point. Even if you are entitled to minimum wage, holiday pay, etc., then you're probably an employee, at which point the employer wins the right to tell you how much the job pays.

[zonino]

11.1 SELF-EMPLOYED WORKERS Workers engaged in grades listed in Appendix 1 who fulfil any specific requirements shown in the list (see Paragraph 2.1 above) and workers who have produced a valid letter of authority (see Paragraph 2.2 above) are regarded as self-employed. You should complete a form 46R-1 for each such worker to whom you have made payments exceeding £1000, inclusive of any payments of expenses, during the relevant return period. The necessary forms and instructions for their completion may be obtained...

 

from page 18 of http://www.hmrc.gov.uk/specialist/fi_guidance_notes2003.pdf

 

that would suggest that the HMRC recognise that it is possible to be a self-employed worker in the media industries, and I'm going to go with that!