My friend is a freelancer who has worked for the same firm for the last 5 years, she uses their equipment ...?

Question

and has no other source of income. Is she technically an employee due to length of service?

If she was dismiss for no reason other than she is a freelancer, can she claim unfair dismissal? Under what grounds?

Serious answers only please

Answer 1

I am assuming that your friend is working in the UK? if so then I am sorry to say but in reality she is not employed by the company - she will not be shown under the company Employees roster but rather under contractors.
As a contractor the company that she is employed with can terminate the contract as per agreed contract between your friend and the company (I am assuming there was a legal contract / letter of appointment as a freelance that stipulates notice time?). Unfortunately your friend can not get compensation for unfair dismissal but maybe she can look at small business websites and instead get compensation for loss of earnings and business as she obviously was not able to get any other work in due to the continuous usage of her time by the current contract .
The link Below in the I-village website also answers this question - good luck

Answer 2

I'm an independent Computer Consultant and her situation is very tricky. If she tries to claim she was terminated for some reason she would first have to be classified as an employee. That would cause her (and the company) serious tax problems. The IRS sometimes will call folks in her situation a "Captured Employee". If the company was paying her as a business, for example she received a check from AP and the check was made out to ABC Enterprises, Inc, she could never claim she was an employee. However, if they were writing her a check to her name such as Jane Doe, then she may be able to be considered a "Captured Employee".

All of this said, if she would like to remain a freelance person, she should take the termination, for what ever reason and move on. Such is life in the independent consulting business. If she were to create a stink of some sort, she could probably forget getting much future business because when you do consulting work, reputation is everything.

Answer 3

To be considered as a subcontractor (or freelancer, as you put it), the person must be able to come and go as she pleases, be available to work for other firms, hire other people to complete the tasks as she sees fit, carry her own liability insurance (and all other types of insurance) and be responsible for completion of the hired task with no immediate supervision. That said, if she is a subcontractor, she can be dismissed at any time, assuming her contract isn't violated in some way. If the company dismissed her in violation of a contract, then your friend has grounds for a lawsuit (although it would probably be quite expensive to drag something through the court system).

Length of service isn't what determines status as an employee. An employee is hired to perform duties determined by management at the date, time and hours specified by an employment agreement. If your friend should have been classified as an employee, she should have spoken up a long time ago. If she really wants to be vicious, she could call the US Department of Labor and complain that she should have been an employee and wasn't. That gets really ugly for the employer, let me tell you!

Answer 4

She needs to go back to her original contract - it may say something about notice period from either side. Apart from that she doesn't have a leg to stand on.

If she is in the UK, as she has been working for the same company and this is her only contract, I hope that she has been paying her National Insurance under IR35, otherwise she will get a huge bill when the Inland Revenue and Customs catch up with her. I also hope that she has been keeping up with her VAT - assuming thet her earnings are above the VAT threshold.

Answer 5

Nope. To whom she's working for or how long is irrelevant. A freelancer is a person who is working for themselves to sell their services to a client. One would be so lucky to have a client that is a consistent source of business.

But no, she is not their employee so if her services were no longer needed, then there's no recourse. Unless there was something stated to address that in the contact that they agreed on.

But you can't be grandfathered into a job if you didnt apply for it or ask for it. Unless she explicitly stated that she wanted to work for the company and they accepted her offer, she is still working freelance.

Answer 6

I think the rules of dismissal would vary from State to State.
Some firms are getting in trouble with the IRS for categorizing workers as "sub-contractors" to keep from having to pay SS & Medicare & Unemployment Ins. when in truth these folks are workers who are required to be "on the job" as the owner requests.

Answer 7

If she was hired through any agency then due to her length of service she may have amployer rights as she may have been employed as what is termed LTA long term agency staff and therefore willl be entitled to most of the benefits as a directly employed person. She would need to check what ever contract she has out to clarify her position.