Freelancers' Questions: How to protect myself if I hire freelancers abroad?
Freelancer’s Question: Can a freelancer legally protect themselves if they want to hire other freelance workers abroad to execute a client-agreement? So if I’m hiring from the UK, but hiring freelancers abroad, how should the agreement I put in place with them differ? My intention is to hire other self-employed professionals (freelance workers like me) overseas, and then sign off an NDA and freelancer work agreement with them. If I do that, can I protect myself, legally?
Expert’s Answer: When you decide to hire other freelancers, you will always have to keep in mind your client’s agreement. The first element will be to check whether in your client’s agreement there is a clause allowing you to subcontract or use subcontractors. You may also need to obtain the consent of your client.
MIRRORING YOUR CLIENT’S TERMS
The next element is to review the obligations in your client’s agreement. Here, look out particularly for any obligations relating to the scope of the project at hand, coordination, cooperation, confidentiality terms, as well as Intellectual Property (IP) and data protection clauses.
Make sure the same obligations you agreed with your client are mirrored into your agreement with the freelancer, so that the freelancer is contractually bound to perform the project in the same way that you are bound to do so. Almost needless to say, you should also include any deadlines as stated in your agreement with the client to ensure that your freelancer respects key dates and milestones. This is so important if you, overall, are accountable to the client for hitting the targets!
Next, another essential aspect is to include a liability clause. This will allow you and your freelancer to agree on the scope of liability for any contractual breach or negligence. You should check your level of liability under the client agreement, and make sure that this is mirrored in the contract with your freelancer in respect of the portion of work they are undertaking for you, so that you have recourse to recover your costs against the freelancer if anything goes wrong on the client’s project.
To this end, make sure your freelancers have adequate insurance in place, and if necessary, set out any requirement for them to take out a policy for specific or general claims in the contract.
INTERNATIONAL PERSPECTIVE: HIRING FROM ABROAD
We are now more digitalized than ever, and the current times are making your situation of hiring individuals located in any other countries even more of a reality! So, there is no need to worry, as it is actually pretty common to engage freelancers from abroad.
Generally, we suggest making sure the freelance contracts you enter into are governed by the laws of the country where you are based, such as England & Wales or Northern Ireland or Scotland. This will facilitate the enforcement of the agreement by the courts, and of course it will be easier due to the language, attending court (if you ever have to), and submitting documents. However, it will still be important that you check the governing law aspect with a lawyer, because enforcing agreements outside of the UK can be tricky, especially in a post-Brexit era and until a further legal framework is agreed. Having a lawyer check this over can ensure you are protected.
GOOD PRACTICE, GUARANTEES AND GET IT IN ENGLISH
Penultimately, it is good practice for you to check the freelancer’s self-employment and tax status, especially considering that each country has its own rules on this matter, such as the IR35 legislation in the UK. It would therefore be an extra guarantee for you to obtain evidence -- with English translations -- about their self-employed status. Additionally, you should ensure that you include an obligation from the freelancer to refund you or your client, in the event that you or your client incur any tax or social security liabilities due to the freelancer (relating to their employment status).
As a final note, and as you already mentioned it, it is definitely crucial that you sign an NDA with any subcontractor or freelancer that you engage, so that you and your client’s business and information remains protected. Best of luck!
The expert was Soraya Redondo Mezmizi, a legal consultant at Gerrish Legal, a Paris and London-based law firm specialising in legal advice for independent business owners.