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).
- What rights does a freelance worker have to charge a cancellation fee where an engagement is booked but cancelled at the last moment?
- 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?
- 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?
What rights does a freelance worker have to charge a cancellation fee where an engagement is booked but cancelled at the last moment?
The issue is not about rights. Rights are what society gives in order to protect the vulnerable. Freelancers are in a commercial arrangement and are free to contract on such terms as the market will bear.
English commercial law has grown up since the early 19th century on the pillars of an assumed equality of bargaining position and of total freedom to contract.
That of course does not reflect reality for the average freelancer either now or at any time since the 1800s.
There are two sorts of rights – the ones you have and the kind you can enforce. If you don’t have the latter you really don’t have the former.
So charge a cancellation fee by all means, but consider:
- Is the right to charge a cancellation fee actually in my contract?
- Am I prepared to enforce the payment by suing the client?
- Is it worth the time, money and aggravation of doing so and what will that do for client relations?
The latter two points are really commercial decisions, not about rights. The former comes down to contract law.
There are three basic elements in the drawing up of a contract:
- The parties must have reached agreement.
- They must intend to be legally bound.
- They must have provided valuable consideration – that is it is not a “bare” promise, made without consideration of payment.
In considering whether a contract has actually been made, the courts will decide if a reasonable observer would assume an agreement to have been concluded on certain terms. They do this by considering whether one party has made an offer which has been accepted by the other party.
A contract can be written or implied, oral or constructive and will consist of various terms, both express and implied.
If a freelance wants to charge a cancellation fee, it should be a contractual term agreed by both parties, ideally in black and white – that is written and expressly made.
Notice to the client that they will be charged a cancellation fee would also be included within the terms and conditions on an invoice. The agreement would, for example, state that there will be no cancellation fee if the client cancels the commission up to two days before, but that one will be levied after that.
It is also worth considering taking a deposit to cover cancellation fees and making it a contractual term that the deposit is non refundable in the event of cancellation, or not providing a certain number of days notice.
This raises the issue of how much these charges should be. Here the key word is what is reasonable. There are three types of damages to consider: liquidated and unliquidated damages or a penalty clause.
Liquidated damages are a genuine attempt to sit down and try to work out what loss would be incurred as a result of a breach of contract and to place a value on it. This is the same process as, for example, when a compromise agreement is drawn up between an employer and an employee who has agreed to forego their right to pursue an unfair dismissal or discrimination claim in return for compensation.
Unliquidated damages are too uncertain to be calculated but can be assessed by the court, which will fix the amount due.
Penalty clauses go further. They are a sum arrived at which has a deterrent value, rather than reflecting an actual financial loss. They are mostly unenforceable in court.
Essentially, the cancellation fee represents damages to put the individual back to where they would have been if the job had gone ahead. So in order to enforce it the individual would have to prove their losses – such as expenses reasonably incurred like travel, accommodation and equipment hire - and that they have endeavoured to mitigate them by finding alternative work.
It is debatable as to whether profit loss can also be claimed, but if a job has been lost where it was expected that a profit would be made then it is legitimate to include it in a calculation of losses.
Ultimately, the best advice a freelance in this situation can be given is charge a cancellation fee if you want to. But if they refuse to pay it, think twice about working for them again.
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 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.
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.
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 employer's equipment and working to the employer's instructions is classed in common law as in effect an employee and is therefore covered by ELCI.
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.
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?
In England and Wales, 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 2007.
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.
Different rules apply in Scotland where theatres and broadcasting or film studios are non-smoking. In Scotland, it is an offence to smoke in theatres including on stage. This applies to any product that can be smoked including herbal cigarettes. The Scottish government advises through its 'Clearing the Air' website (www.clearingtheairscotland.com) that for those theatrical performances which require the portrayal of someone smoking, other artificial products will need to be used.
Exemptions to the general smoking ban in Scotland are mainly restricted to designated smoking rooms which must not ventilate into any other party of non-smoking premises. Self-catering accommodation is not covered by the smoke-free law.
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.
Page amended 12 April 2013 to remove out of date posting on Working Time Directive and Holiday Entitlement.
New FAQ on cancellation fees added 17 April 2013.