The following frequently asked questions relate to UK and EU law.
- The questions and answers that appear on this page are for general guidance only. They are not intended as specific legal advice for individual cases.
- Any member with a personal legal query should contact BECTU legal services.
- The date shown at the end of each individual answer should be taken into account when assessing the relevance to current circumstances.
- Please note there are differences in legal systems between some of the UK Nations.
Members with legal questions they think may be of interest to others should contact Janice Turner, editor of the union's journal, Stage Screen & Radio. Answers will be published there first and posted later on this page.
The FAQs on this page are in chronological order (most recent first).
- How long can a freelancer be employed by one company before they lose their freelance status?
- I am shortly to be made redundant due to the closure of the cinema where I work. We have been advised that we will not be handed our redundancy cheque on the day of closure and will have to wait until the normal payment day of the following month. Please can you advise if this practice meets current legal requirements?
- I am a schedule D freelancer. In the eyes of the law I'm not an employee but I am a worker. My work is carried out entirely at times and places dictated by the employer. Am I covered by their employer's liability insurance?
- I am a worker employed by a theatre company on a seasonal basis. The season usually lasts for about nine months and I am currently half-way through my fourth contract. Do I benefit from the fixed-term worker regulations?
- Does the smoking ban apply to theatres and to rehearsals and/or just performances? Are there any other specific exemptions to the law in other industries?
- With the increase in working time holiday entitlement regulation just coming in, how will I as a freelancer be affected?
- I've just drawn up a will but I have been told that some of my assets are not covered by the instructions in it, is that correct?
How long can a freelancer be employed by one company before they lose their freelance status?
Under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, where an employee has been employed under a series of successive fixed-term contracts lasting for four years or more, she or he will be treated as employed on a permanent basis when a new contract is accepted unless the employer can justify the continuation of fixed-term contracts. There is no set period after which a freelancer loses freelance status. The test is always whether the freelancer is as an "employee" or not, and that depends on the extent of control exercised by the employer over the freelancer's activities and whether the freelancer can be required to undertake further work when offered.
December 2007
I am shortly to be made redundant due to the closure of the cinema where I work. We have been advised that we will not be handed our redundancy cheque on the day of closure and will have to wait until the normal payment day of the following month. Please can you advise if this practice meets current legal requirements?
Unfortunately there is no legal requirement on your employer to give you your redundancy cheque on the day the cinema closes and frequently employees do have to wait until their normal pay day before they receive their redundancy money.
If you do not receive your redundancy payment on your normal pay day you can submit a claim to the Employment Tribunal.
You must lodge the claim with the Employment Tribunal within six months of your last day working at the cinema.
If you do not, you may lose your right to the redundancy payment.
December 2007
I am a schedule D freelancer. In the eyes of the law I'm not an employee but I am a worker. My work is carried out entirely at times and places dictated by the employer. Am I covered by their employer's liability insurance?
Employer's Liability Compulsory Insurance (ELCI) is extremely wide and whether it is payable after an accident or diagnosis of industrial disease is judged on a case by case basis, according to whichever workplace health and safety regulations apply.
And while not all the regulations apply to self-employed people, the key as to whether a freelance is covered is who is in control of the work equipment they use and the manner in which they use it and do their work.
The Provision and Use of Work Equipment Regulations (PUWER) 1998 cover self-employed people. If they are breached by an employer and that breach causes injury to a self-employed person who is working for them then ELCI would apply.
The Workplace Regulations 1992 also apply to visiting workers.
However, if a self-employed person being paid to do a job using their own equipment and controlling the job themselves chooses to lift a heavy object and is injured as a result it is unlikely that they will be covered by the Manual Handling Regulations.
As said though, what undercuts all of this is who is in control. So a freelancer using the employers' equipment and working to the employer's instructions is classed in common law as in effect an employee and is therefore covered by ELCI.
November 2007
I am a worker employed by a theatre company on a seasonal basis. The season usually lasts for about nine months and I am currently half-way through my fourth contract. Do I benefit from the fixed-term worker regulations?
A "fixed-term contract" is a contract which terminates:
1. at the end of a specific period;
2. on the completion of a particular task; or
3. on the occurrence of a specific event
A contract to work for the length of the theatre season is likely to count as "fixed-term contract" for the purpose of the fixed-term worker regulations, meaning that such a worker would probably be protected.
That worker would be entitled to be treated no less favourably on grounds of fixed-term status than a comparable worker employed on an open-ended basis, unless the employer could justify objectively any difference in treatment.
Importantly, once an employee has completed four successive fixed-term contracts, they are to be treated as employed on an open-ended basis unless the employer can justify objectively the continuation of fixed-term status.
October 2007
Does the smoking ban apply to theatres and to rehearsals and/or just performances? Are there any other specific exemptions to the law in other industries?
The smoking ban applies to theatres as it does to all enclosed and substantially enclosed public places and places of work.
However, Section 3 of the Health Act deals with exemptions, and says that regulations may be made providing for specified descriptions of premises, or specified areas, not to be smoke-free. The smoke-free (exemptions and vehicles) regulations came into force on 1 July.
Regulation 6 says:
Where the artistic integrity of a performance makes it appropriate for a person taking part in a performance to smoke, the part of the premises in which that person performs is not smoke-free in relation to that person during his performance.
Section 3(8) of the Health Act defines "performance" as including "the performance of a play, or a performance given in connection with the making of a film or television programme". It goes on to say, "if the regulations so provide, including a rehearsal". However, the regulations do not mention rehearsals so they are not, currently, exempted.
Other exemptions under the regulations are: residential accommodation, hotels, boarding houses etc, in specified rooms, designated rooms in care homes, ?hostels and prisons, specialist tobacconists, smoking rooms in research facilities where tobacco or smoking products are tested and designated rooms in mental health units.
September 2007
With the increase in working time holiday entitlement regulation just coming in, how will I as a freelancer be affected?
All workers have had a right to a certain amount of paid holiday since 1998. In 2001, BECTU won a key judgement at the European Court of Justice to establish that this right also applies to freelance workers from day one of every contract, regardless of its length.
For a leave year starting on or after 1 October, 2007, minimum holiday entitlement will be increased from four weeks per annum, to four weeks plus four days per annum. If your leave begins before 1 October, you get a pro rata increase for your current leave year.
How to calculate your holiday entitlement from October 2007, daily contracts and five-day weeks: if you are on a daily contract, or a weekly contract based on five-day weeks, your holiday entitlement is 24 days per annum, pro rata for contracts shorter than a year. Therefore on a six-month (26-week) contract your holiday entitlement is 12 days and on a three-month (13-week) contract it is six days.
The days you take as paid holiday must be days on which you would otherwise have worked. Unpaid weekly rest days (typically Saturday or Sunday) do not count as paid holiday. If you are unable to take paid holiday during the contract, then you must receive an appropriate compensatory payment at the end of the contract.
This is commonly called "holiday pay". Holiday pay on a daily contract or five-day week is equivalent to 10.2 per cent of your basic rate.
Six-day weeks: if you are on a weekly contract based on six-day weeks, your holiday entitlement is 28 days per annum, pro rata for contracts shorter than a year.
Therefore on a six-month (26-week) contract your holiday entitlement is 14 days and on a three-month (13-week) contract it is seven days.
Other arrangements are the same as for daily contracts and five-day weeks, except that holiday pay on a six-day week is equivalent to 9.9 per cent of your basic rate.
September 2007
I've just drawn up a will but I have been told that some of my assets are not covered by the instructions in it, is that correct?
Death benefits under a pension scheme are usually distributed at the discretion of the pension fund trustees. You should therefore let them know of your wishes.
