Freelancing and contracting

Freelancers are a popular alternative to employing permanent staff for some employers. The relationship is flexible and there are no long-term commitments for either party. Further, a lot of the regulations that would apply should you employ that staff member on a contract of employment (for example unfair dismissal under the Employment Rights Act 1996).

If you regularly contract with freelancers to work on projects then you’ll clearly want assurance relating to a number of issues, including:

• The capability and qualifications of the freelancer to do the work
• That the work will be done to the standard specified and with reasonable care and skill
• That the work is completed within the necessary deadlines

The tendering process is the stage at which to verify the capability and qualifications of the freelancer. Ensure that the freelancer provides you with a portfolio of work done, their CV, and at least two references relating to previous work they have completed. Take the time to speak with the freelancer, either in person or on the telephone. It’s vital that the nature of the work and the desired outcome is explained at an early stage. If not, both parties can get a nasty shock when it comes to submitting the work.

The second two issues relate to the terms of the contract with the freelancer. A contract can be in writing or oral and the terms can be express or implied. So if there’s no express written contract an oral contract will substitute to effect the relationship between the parties. Even if there is no express written contract there can be express terms  between the parties – for example as to the nature and value of payment, and the deadlines in the project. However, in the event of a dispute (and the lack of a written contract) it may be difficult to prove that these express terms existed unless there is written correspondence delineating the terms on which the parties engaged in the relationship.

Our recommendation would be to always have a (relatively simple) written contract with the freelancers that you contract with. By doing so you are potentially avoiding practical and legal problems in the future (such as a dispute over deadlines) and both parties understand the terms on which they are offering and receiving services. You should include express terms relating to:

• The nature of the work to be done
• Who is to do the work
• When the work is to be done by (either staged or in one ‘go’)
• The value of the payment to the freelancer and when it should be paid (either staged or, again, in one ‘go’)

In the event that there is no written contract with these express terms (or the written contract doesn’t specify particular terms) the terms of the contract are implied by (depending on the nature of the work) the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982. These two pieces of legislation and their effect on consumer to business and business to business relationships will be explained in a future post.