Whose clients are they anyway?

Freelance creative professionals are lauded for the contacts they make, the networks they secure and professional-types they can rely upon.

But when can freelancers legally approach clients or companies they know from engagement via a client company they no longer work for?

Are freelance journalists legally sound in saying ‘contracts are our stock in trade’ even if those contacts emerged from a previous assignment for a publication they no longer service?

Asked when creative freelance workers are within their rights to approach clients from a previous company, one legal expert said, “in principle, ‘they can, unless they can’t.’”

Roger Sinclair, legal consultant at Egos Ltd, a contract and commercial law specialist, explained: “They can… unless prevented by some valid and enforceable contractual restriction.”

He told FreelanceUK: “It is too broad a question to be able to give any kind of comprehensive answer. This is an area where specialist advice is needed on each particular contract and situation.”

According to Mr Sinclair, freelance workers who use recruitment agencies need to be extra vigilant with their contracts, as a variety of factors come into play, some of which pertain to the Conduct of Employment Agencies and Employment Businesses Regulations, 2003.

* is there an apparent opt-out (from the regulations), and if so, is the opt out in fact effective (often it's not - and if not, then the restriction may not be enforceable)

* what does the term actually mean (often they don't mean what the recruitment agency intends them to mean, or what the freelancer/contractor thinks they mean)

* is the term actually likely to be enforceable

* what is the client's attitude likely to be (if the client is not onboard then it is a waste of time trying to go direct - some clients are very risk averse - sometimes the front line are OK but the contract-signers not)

Mr Sinclair warned: “Repeat; specialist advice and risk assessment is pretty well always required” when freelancers need to assess the legality of approaching clients from a prior engagement.

For other freelancers, the question of whether they can legally approach contacts they met while engaged by a former client on a previous contract will be governed by a restrictive covenant in that contract.

“Ultimately this all comes down to what restrictive covenants are in place in the contract between the freelancer and the client, the way that they're drafted and whether they are enforceable,” Richard Nicholas, associate solicitor at Browne Jacobson, told FreelanceUK yesterday.

Restrictive covenants come in different forms and might prevent a freelancer from carrying out similar work in a given territory or restrict the contractor from working, or offering to work, for the client's customers. They are usually limited to a period after the end of the contractor's contact.

Mr Nicholas advised: “Ultimately…freelancers should be aware that restrictive covenants can (and are) enforced by the courts and can in some circumstances prevent freelancers from carrying out business for contacts they may come to believe are ‘theirs’.

”Where freelancers are working on the basis of their current contract being a stepping stone to their next project or next stage of their career, checking and negotiating the scope of any restrictive covenants should be a key part of accepting a new assignment.”


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