Not all freelance work requires a long contract, some short projects are covered by letters of agreement. Very often freelancers are simply engaged through an email or phone call and never formalise this.
It is worth noting that any agreement will act as a contract, but it is best practice to formalise such agreements and use contracts of appropriate length and detail for the work being done.
We can’t advise on contract law here but we can think about the relationships between organisations, freelancers and their contracts - so in this section we have tried to address how we interact with contracts and agreements.
The March for the Arts Committee have devised a list of DOs and DON’TS for both freelancers and organisations - have a look at the list here. The information is also covered below.
“As freelancers, we have to negotiate in whispers”
Use clear language
Avoid assumption and presumption - ask and tell.
Give breathing space, time for contracts to be absorbed, discussed and adapted
Use contracts to protect both sides.
2.1 Provide new or update old contracts for subsequent jobs.
Regular freelancers can find themselves under contracts that were created for previous work. This is understandable given the time constraints on some work, but organisations should think about ways to easily add updates or make changes, a Google document for example.
2.2 Provide draft contracts and accept that freelancers can negotiate the terms of their contracts or letters of agreement.
Freelancers, especially when working as self-employed people, have a legal right and professional obligation to negotiate the terms of their contract. Self-employed engagements should be approached as negotiations between both parties, and freelancers should feel comfortable setting rates.
This means having open communication about contracts and allowing time and space to work together on them.
2.3 Consider the entirety of a freelancer’s working time for a job or project at the contracting stage.
Ensure that details about meeting and catch up time, preparation, holidays, working hours (and associated boundaries) are outlined in contracts and agreements. See more about these issues in Section 6, clauses 6.10-12.
2.4 Consider extra payment schedules.
Freelancers may wish to stipulate what will count as a basic and what will fall under extra, and at what rates these will be charged.
2.5 Include cancellation clauses.
Addressing the possibility of cancellation will enable both sides to consider what might happen if work is cancelled. It will also remove the temptation to enter into formal agreements without appropriate levels of commitment.
Any preparation completed before a cancellation must be paid for and it is always best practice to continue with payment in the event of last minute cancellation.
Organisations should continue to follow payment schedules that have already been set out. All possible steps must be taken to ensure that artists and freelancers are not left out of pocket through cancellation.
Flexibility in rescheduling in case of cancellation is also best practice.
Communication about what will happen in the event of cancellation from the start is best practice so that a freelancer can make an informed decision about agreeing to work that may have risks.
2.6 Be clear about the capacity you are employing someone in and what rights and benefits this implies on both sides.
The practical ways that you work with someone are what, in reality, determines their employment status, and this can’t be changed by what is written in a contract. Find out more about employment status here.
However, having employment status and the associated benefits and expectations detailed in the contract is good communication. It will help a freelancer feel clear and comfortable in their status.
Remember that tax status can be different to employment status. Seek legal advice if someone’s status is not immediately obvious.
2.7 Keep contracts open to change, be human and write in plain language.
Think of the first iteration of a contract as a draft until both parties have had a reasonable chance to discuss and suggest changes. Make time to answer questions, explain and adjust.
Get help with plain, clear and precise language here.
2.8 Remember that minimum rates are minimum.
At the point of contracting, agreements and written confirmations, even if you have already discussed pay, you can offer more and you can ask for more.
2.9 Be clear about payment, hours, expenses, overtime and preparation time.
See more about payment.
2.10 Freelancers should ask for a contract, negotiate, ask questions and clarify anything that doesn’t work for them.
Feel free to ask for things in writing. Communicate clearly if a contract doesn’t work for you, an organisation may be using a standard template and may not realise they need to adapt.
2.11 Crediting, intellectual property and non disclosure agreements should always be discussed, outlined and explained clearly before work starts.
Crediting process and intellectual property rights should be outlined in the contract.
A discussion about artistic work and who will own/control the output of a project and how that can be shared should always be considered, particularly where a small organisation or small project means that lines of ownership are blurred. This should be followed up in writing.
2. ‘Last minute’ is, of course, a relative concept. A good rule of thumb would be to think about whether parties have time to find other work in replacement of cancelled projects and whether they have already made practical arrangements in order to carry out work.
3. There are grey areas surrounding who owns the output of a freelancer, sometimes it can depend on whether the freelancer is employed as an artist in their own right, or as a staff member on a project owned by an organisation, but this isn’t always straight forward. MFTA would advise discussing this before beginning work and seeking legal advice if necessary.
Although organisations should be investing in appropriate insurance to cover costs in the event of cancellation, there are circumstances where organisations will find it impossible to continue with payment in the event of a cancellation that is beyond their control.