Client going against contract

[LCat36]

In need of some advice please…

I’m a freelancer, & my contract with a client states “paid at a rate of £x per hour & the work is expected to take up to x hours per week on average with additional hours as mutually agreed” it goes on to say I can “choose when hours are worked”. My understanding was that the weekly hours were a guideline highlighted by use of words “expected” & “on average”.

Unfortunately, the newly hired (extremely pedantic) Director views the expected hours per week as the standard (& not a second more), in fact they’ve proposed going forward I work set hours on set days, & ask their permission to work outside of the weekly allowance. Any ideas on how I respond/ move forward? The nature of my role is very reactive, and set days completely contradicts my agreement, but am I right in thinking that the hours per week are flexible to some extent? I would like to write a clear, concise response to nip this in the bud.

Many thanks in advance!

[Sam101]

If you are not happy as a 'Freelancer' then move on. You do not need to have disputes with anyone who seeks your services, so have a discussion and if you can't agree, move to another employer.

All 'Freelancers' offer their services with terms that are either agreed or not. Some employers prefer 'Freelancers' to avoid any obligation regarding tax , national insurance, healthcare or pensions. They often require someone on the cheap, but there are limits over which you are in control.

[LCat36]

Thank you for your response Sam, and I completely agree that I do not want nor need to be having a dispute with anyone. I would, however like to retain the income, and up until recently it was a great role to have. I just wanted to understand if my interpretation of the terminology in the contract, and the flexibility of the weekly hours is correct? I would like to send a polite yet firm response to the new proposal, in the hopes that we can move forward.
Many thanks in advance

[atticus]

I prefer your interpretation to that of the apparently pedantic director.

[theberenger]

I really ought to start my response by making clear I am not an employment law expert, so remember that, but I do have one or two thoughts.

1. Have they signed your contract, agreeing to its terms?
2. How long does your current contract have to run, or is it open ended?
3. How long have you been working for them under this contract?

I think your route forward depends very much on the answers to those questions, because that will inform you how strong your position is. Even if they haven't signed your contract with a wet signature, their acceptance of its terms can be implied by their lack of challenge. I assume they retain a copy of the contract themselves?

If the new director wants to fundamentally change your contractual terms, then they are effectively renegotiating your contract. Does your contract contain an early termination penalty?

[LCat36]

Attics/TheBerenger thank you so much for your responses!

In answer to your questions please see below:-

1. Have they signed your contract, agreeing to its terms? Yes, both signed

2. How long does your current contract have to run, or is it open ended? The contract is open ended and states “unless and until an alternative is specifically agreed between both parties”.

3. How long have you been working for them under this contract? Since January of this year. Under ‘fees’ there is a clause that states “after six months this (fees) will be reviewed and regular extra hours may be agreed upon”, however, when I initiated discussions recently I was told “your contract does allow for a review after 6 months but normal practice is we do a review on an annual basis” and I was reminded that the rate agreed initially was “fair” and there “were a number of applicants at that level”.!!

As mentioned my understanding was the hours per week arrangement was fairly flexible, indeed the previous Director who hired me said “we understand some weeks will be busier than others” and “it’s up to you how you manage your schedule” ,however, new Director is taking “expected” hours to be the standard and doesn’t want me to go a minute over or under.

Clearly, as Sam101 suggested I should move on but until I can replace the income I would like to keep the job.

[atticus]

Do you have what the previous director said in writing?

[LCat36]

Unfortunately not Atticus, it was during an informal chat when I first started. My role is very reactive and it would be completely ineffective for me to work set days and hours and as previously mentioned my contract states “expected” and “on average” with regards to hours.

[ULA]

The problem you are having concerns me on wider issue that has been already discussed and that is your employment status.

You are a freelancer therefore you are self-employed. As such to genuinely prove you have this status and you do not become a defacto employee then you have to maintain the control over the freedom and flexibility you have with regard to working hours, your overall scheduling of work and the level of personal responsibility in carrying out the work in question.

It sounds like your previous director had the right attitude when it came to working with someone who is taken on as a freelancer and the new director, in wanting more control over your working schedule, may inadvertently bring you closer to being potentially classified as an employee.

Does this company have an HR department and were they involved in your hiring or was your freelance contract only negotiated via the previous director?

[LCat36]

ULA thank you for your response, I really do appreciate all the advice received thus far.

I’ve sent a polite yet firm response reminding the Director that I am a freelancer and therefore, responsible for choosing my own working hours etc as per our agreement.

It’s a very small organisation, which unfortunately does not have a HR department! The previous Director had experience managing freelancers, drafting contracts etc, whereas, their replacement has not, and clearly views me as their employee (i.e being told I need their “permission” if I work more than x hours per week). It was a great role until recently but unfortunately I know that I need to move on.

[ULA]

Sorry to point out the employment status complication but that is my main concern about this situation for you, although I appreciate you would need to find some more work before moving on.

Fingers crossed regarding your response but you know where we are if you need any more advice.