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Subcontracting clause, explained
A subcontracting clause says whether the supplier may have someone else perform part of the work, on what terms, and that the supplier stays liable.
Last updated 28 October 2026
What does a subcontracting clause do?
A subcontracting clause says whether the supplier may have someone else perform part of the work, and on what terms. The original party stays liable to the client. Contracts for personal skill often cannot be performed by a substitute without consent. Where personal data is involved, UK GDPR Article 28 requires prior written authorisation for sub-processors.
Can a freelancer bring in a specialist without asking?
Only if the contract allows it. Most papers require the client’s prior written consent, sometimes not to be unreasonably withheld, and pre-approve named specialists. A contract for a named person’s skill is a personal contract: sending a substitute without consent is a breach. IR35 and off-payroll status look at substitution; do not paste a free-substitution line into a paper that is meant to be personal. See the IR35 checklist.
How is subcontracting different from assignment?
Subcontracting is getting someone else to do the work while you stay on the hook. assignmentAssignment is the transfer of rights under a contract to someone else, such as the right to be paid. In England and Wales a legal assignment of a debt must be in writing, absolute, and notified, under the Law of Property Act 1925 s.136. Duties do not pass by assignment; moving duties takes a novation.More in the glossary transfers rights under the contract, such as the right to be paid. A legal assignment of a debt needs writing, must be absolute, and needs written notice to the debtor (Law of Property Act 1925 s.136). novationNovation replaces one contract with a new contract, swapping in a new party and releasing an old one. In England and Wales it needs the consent of everyone involved: outgoing, incoming and remaining. Unlike assignment, novation can move obligations as well as rights, because the original deal is discharged.More in the glossary replaces a party. This page is the work; the combined assignment and subcontracting page covers both. See assignment and novation.
What terms must flow down?
confidentialityConfidentiality is a promise to keep shared information private and to use it only for the agreed purpose.More in the glossary, IP, data protection, and any client-specific restrictions. The supplier remains responsible for the subcontractor’s acts as if they were its own. Flow-down that is wider than the head contract is how a specialist is asked to take risk it was never paid for. Match the flow-down to the head terms. On Contracts.io the subcontractor signs the same live draft, or a short subcontractor agreement that points at it.
What does UK GDPR require for sub-processors?
Where the supplier is a processor, Article 28 requires the controller’s prior specific or general written authorisation before another processor is appointed. On a general authorisation, the processor must tell the controller of intended additions or replacements so the controller can object. The same data-protection obligations have to flow down, and the initial processor stays fully liable. Write the authorisation method. See data protection.
Example wording
Example · our own drafting
The Supplier may subcontract part of the Services with the Client’s prior written consent, not to be unreasonably withheld. The specialists listed in the scheduleA schedule is an annex to the contract that holds the detail: fees, dates, deliverables, service levels. It is part of the agreement if the main body says so. An order-of-precedence line should say what happens if the schedule and the clauses collide. Swap a schedule only by the variation method the contract names.More in the glossary are pre-approved. The Supplier remains responsible for its subcontractors’ acts and omissions as if they were its own. Confidentiality, intellectual property and data-protection obligations will flow down. Where the Supplier is a UK GDPR processor, it will not appoint a sub-processor without the Client’s prior written authorisation under Article 28.
In Plain English
The supplier can bring in someone else to do part of the job if the client agrees in writing first, and that agreement cannot be refused without a good reason. Named specialists in the schedule are already approved. The supplier stays responsible for their work. Confidentiality, IP and data rules are passed down. If the supplier handles personal data as a processor, it needs written go-ahead before it appoints another processor.
What should you watch for?
| Point | Watch for | Push for |
|---|---|---|
| Consent | A free hand to subcontract a named-person job, or a flat ban on any specialist. | Prior written consent, not unreasonably withheld, with named people pre-approved. |
| Liability | A subcontract that tries to drop the supplier’s responsibility to the client. | The supplier remains responsible as if it had done the work itself. |
| Flow-down | Head-contract risk dumped onto a day-rate specialist, or no flow-down of confidentiality. | Confidentiality, IP and data terms that match the head contract. |
| Data | A processor that appoints sub-processors with no Article 28 authorisation. | Prior written authorisation, flow-down, and ongoing liability. See data protection. |
| Status | A substitution right that rewrites an IR35 position the parties meant to keep personal. | Substitution wording that matches the real working practices. See the IR35 checklist. |
Which contracts include it?
Lex includes this clause in, among others:
- Subcontractor agreement
- Services agreement (master services agreementA master services agreement (MSA) sets the legal terms for an ongoing relationship, with each project then agreed in a separate statement of work.More in the glossary)
- Freelancer agreement
What does the law say?
Processing by a processor must be governed by a contract that is binding on the processor and sets out the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects, and the obligations and rights of the controller, including the processor terms listed in Article 28(3)(a)–(h).
Source: UK GDPR, Article 28(3)Checked 28 October 2026Pending lawyer review
A legal assignment of a debt or other legal thing in action must be in writing under the hand of the assignor, must be absolute and not by way of charge only, and express notice in writing must be given to the debtor, trustee or other person from whom the assignor would have been entitled to claim.
Source: Law of Property Act 1925, s.136Checked 28 October 2026Pending lawyer review
Draft a subcontractor agreement with this clause
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Frequently asked questions
What does a subcontracting clause mean?
It says whether the supplier may have someone else perform part of the work, on what consent, and that the supplier stays liable to the client. It is about performance of the work, not transfer of the contract.
Can a freelancer bring in a specialist without asking?
Only if the contract allows it. Most papers require prior written consent. A contract for a named person’s skill is personal: sending a substitute without consent is a breach.
How is subcontracting different from assignment?
Subcontracting leaves the original party liable and gets someone else to do the work. Assignment transfers rights under the contract. A legal assignment of a debt must meet Law of Property Act 1925 s.136. See /clauses/assignment-and-subcontracting.
What terms should flow down to a subcontractor?
Confidentiality, intellectual property, data protection, and any client-specific restrictions. The supplier remains responsible for the subcontractor’s acts as if they were its own. Match the flow-down to the head contract.
What does UK GDPR require for sub-processors?
Where the supplier is a processor, Article 28 requires the controller’s prior specific or general written authorisation, flow-down of the same obligations, and ongoing liability of the initial processor. See /clauses/data-protection.
Sources
- UK GDPR, Article 28(3)Checked 28 October 2026Pending lawyer review
- Law of Property Act 1925, s.136Checked 28 October 2026Pending lawyer review
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The legal wording governsLast reviewed 28 October 2026Pending lawyer review