Have you protected your business when working with others?

How would it feel to get some support in your business? Imagine if you didn't have to do everything yourself? Whether you are looking to get some support from a freelance Virtual Assistant, Copywriter, or Social Media Manager, you need to have a detailed Agreement in place to protect your business. There are a number of important elements to cover and in this blog we cover four key things that you won't want to miss.

1. Whose terms should apply? The company hiring the support can set the terms of the Agreement.

Whilst most freelancers have their own Terms of Business and some will provide the ‘hiring’ business with their own Agreement or Contract for Service Provision, the business has, as the party offering the work and looking to engage a freelancer, the upper hand in any negotiations over terms. If the freelancer doesn’t agree to the terms desired by the business, the business does not have to offer them the work and can find another freelancer to work with.

Therefore, when engaging a freelancer to come in and deliver services to your business, it should be on terms that work for your business first and foremost. That doesn’t mean that any business should be unreasonable and try to force unfair terms on a freelancer – the agreement needs to work for both parties if the relationship and arrangement is going to be positive and successful. But it does mean that the business does not have to accept any terms that are onerous, impractical, or weighted in favour of the freelancer.

It is good practice for any business that engages freelancers or other external contractors to have its own Freelancer Agreement in place to issue to the freelancer prior to engagement. There may be some discussion or negotiation around certain points or clauses within that agreement - for example, specific requirements or format of service delivery, notice period for terminating the Agreement, or invoicing/payment process. However, there are some points and clauses which a business should insist remain as standard in order to legally protect themselves – such as warranties, insurances, restrictions and non-solicitation clauses. And if you are sharing confidential information with the prospective Freelancer before terms are agreed, you may want to use an Non Disclosure Agreement to ensure confidentiality.

2. Services and Deliverables should be set out clearly in the Agreement, the more detail the better.

For the benefit of both parties a good Agreement will specify exactly what the freelancer will deliver and how they will deliver it (and also what they won't be delivering, if there are standard things that would be expected that won't be in there) This manages expectations and avoids any ambiguity about whether the freelancer is meeting the requirements of the Agreement.

Sometimes it can help to include KPIs (Key Performance Indicators) within the Agreement to be really clear on what is expected from the service provider. For example, an Agreement which simply states that a freelance Social Media Manager will ‘post regularly on business social media accounts’ is vague and leaves lots of room for interpretation. Whereas alternative wording which states the Social Media Manager will ‘create and publish 3 content posts per week on the business Facebook, Instagram and LinkedIn accounts’ is clearer and leaves little room for misinterpretation.

Another example for a Freelance Virtual Assistant Agreement could be that rather than stating the VA will ‘manage the business inbox promptly and effectively’ it would be better to state that the VA will ‘manage the business inbox by responding to, or acknowledging to the sender and forwarding on to the relevant colleague, all email enquiries within 24 hours of being received into the business mailbox.’

Providing a clear and detailed contract isn't a statutory requirement but it can highly reduce the chance of there being a dispute or disagreement between the parties about whether the Agreement has been fulfilled by the freelancer, which can be a headache for any business owner and a distraction from getting on and running the business.

3. Unreasonable exclusivity clauses are not enforceable, but reasonable restrictions and non-solicitation clauses are.

It is a common misconception that a business is free to restrict their freelancers from working for other businesses that may be in competition with their business. Freedom from exclusivity is one of the key principles under iR35 which is used to determine whether or not the contractor is actually a ‘disguised employee’. A self-employed contractor or freelancer would be expected to have multiple clients, and it would be deemed unreasonable for the hiring business to try and include a blanket restriction to prevent the freelancer from working with other clients, even if those clients operate in the same industry.

In some cases, where the freelancer has access to particularly sensitive confidential or commercial information that could present a risk to the business if the freelancer were to use that information to provide services to a direct competitor, some form of contractual protection for the business might be necessary. In order to cover such circumstances it is reasonable to include a clause in a Freelancer Agreement which requires the freelancer to notify, or get permission from, the business before the freelancer agrees to work with another company that might be a competitor. This gives the business the opportunity to review the circumstances and decide if there is a real risk and make a reasonable decision on this basis.

What is perfectly reasonable and commonplace in a good Freelancer Agreement is the inclusion of non-solicitation clauses. These contractually prevent the freelancer from trying to poach clients or staff away from the business for a restricted period of time. Again, the length of the restricted period has to be reasonable for the clause to be enforceable through the courts, but this provision does offer legal protection for the business in circumstances where substantial commercial risk might result from the freelancer’s actions.

4. A comprehensive Data Protection clause must be included in any Freelancer / Service Provision Agreement.

Any Freelancer or Service Provider Agreement must include a clause which sets out the responsibilities of both the Data Controller (the business) and the Data Processor (the Freelancer) in line with UK GDPR. It is the responsibility of the business to ensure that any personal data they share with the freelancer in order for them to be able to provide their services is handled appropriately and in compliance with GDPR - this means that before you share data with a freelancer you need to ensure that your privacy policy allows you to do. This includes considering which data the freelancer uses, how they use it, how they store it, and how they return it after they have completed the services. All of these elements should be covered contractually in the Freelancer Agreement, and if the role the freelancer is doing is deemed to have processing of data at its core (roles that involve collecting, recording, organising, storing, analysing or reporting data) then it is likely that alongside the Freelancer Agreement the business should also have a Data Processing Agreement in place with the freelancer.

These are just four key points to consider in your Freelancer Agreement, but there are many other essential clauses and provisions that you should include to make sure your business is legally protected.

If you want to make sure you have a solid Agreement in place with any freelancers or contractors you bring in to provide services in your business, you should take advantage of our special offer running throughout the month of March.

Usually priced at £197, you can get the Freelancer Agreement for £99 by using coupon code FREELANCE99 at the checkout. And just to make it even more affordable for anyone who wants to get help in their business, anyone purchasing the Freelancer Agreement during March will also get our Data Processing Agreement for FREE and our Non Disclosure Agreement for FREE. That's £293 worth of legal templates for just £99! 

Click here to go to the checkout.