When Barry Jenkins received a solicitor’s letter from a manufacturer alleging that his design consultancy, Broome Jenkins, was engaging in copyright theft, he was taken completely by surprise. According to the letter, a manufacturer was passing off products by using almost identical packaging as a rival. A look at the PDFs had revealed that the design was created at Broome Jenkins’ studio.
‘I just didn’t understand -I had never heard of either company, and we don’t even do packaging work,’ says Jenkins. He rapidly concluded that one of his employees, who had in fact already left the consultancy, had been moonlighting. The copyright case, which Broome Jenkins is no longer involved in, is ongoing, according to Jenkins.
‘This story is incredibly worrying,’ says Simon Pemberton, joint founder of Pemberton & Whitefoord. He allows staff to do unpaid work for charities or for friends and family – ‘wedding invitations, charity marketing materials, that sort of thing’ – as long as they gain management’s permission.
There is general acknowledgement that private jobs are a commonplace activity within the design industry, but nobody is quite sure of the extent of the practice, and groups demonstrate varying levels of tolerance for it.
Some, including Pemberton & Whitefoord, will tolerate private jobs so long as they are unpaid, while others will not allow staff to do any private working in the office. Staff contracts commonly have a conflict of interest clause written into them, but the phrase’s definition is nebulous, embracing everything from working for a client’s rival to overusing the office photocopier.
‘If you are working in office time on equipment that you have not paid for to deliver designs or ideas that possibly conflict with client work then that is fraud, and appalling,’ says Kemistry managing director Omar Honigh.
Jenkins admits that in the past he too has done private jobs while on contract with another company, but expresses regrets about the experience. He believes that working on projects on lunch breaks or before or after work is damaging to the employer’s business – which does not leave much room for private working for full-time staff.
‘While a designer is thinking about their private job, they are not thinking about the project they are supposed to be doing for you,’ he maintains. ‘A lunch break is there for them to rest and attend to private matters. Designers work hard, so when they do have rest periods, they need to take them.’
Private working is generally regarded as a sackable offence. ‘I have seen people being almost fired for doing work of their own, but while we haven’t gone that far, we have had to talk to people about it occasionally,’ says SAS client partner David Stocks.
‘If a staff member was working for a competitor of one of our clients, they would be looking for another job,’ agrees Pemberton.
Jenkins is fairly sure that if his ex-employee had not left a few months before the details of his moonlighting had emerged, he would have felt compelled to sack him. ‘And understandably, because that situation is totally untenable,’ sympathises Pemberton. ‘It puts more than one person’s job at risk.’
Objections about the effect of private working on businesses crescendos to fears about the practice’s implications on the industry as a whole. ‘We would never want to invite a situation whereby one of our employees is almost running their own private business from the company,’ says Stocks. ‘We don’t agree with free pitching, so why would we agree with staff undercutting on price and compromising on quality?’
The net result of unchecked private working is ‘the undermining of our own profession and the earning potential of our designers’, according to Jenkins.
And yet some describe a happier side to private working, in which both employer and employee benefit. While he says that he would usually condemn a member of staff working on the side for an existing SAS client, Stocks says that ‘sometimes a client has a job that is just too small for us to take on’. One such SAS client, a lawyer, wanted a ‘very small website’ for a project of his. SAS did not want to take it on, ‘so I allowed one of our staff to do it as a private job, which was the right thing for our client and for us.’
Venturing even further, Nicolas Mamier, Elmwood’s vice-president EMEA, says, ‘If people have an artistic ambition, then we are happy for them to explore that. Naturally, designers have artistic inclinations, so allowing them to pursue their own projects keeps them happy and fresh, which ultimately benefits our clients, as long as it does not conflict with them.’
Barry Jenkins’ advice on Private work
Designers – if you are going to moonlight, study your contract, be discreet, use your own software and work at home and in your own time. You should also be certain that you are not getting into hot water legally
Clients – clients that are prepared to commission on this basis should reconsider. You wouldn’t dream of asking your accountant to do a home job for half the price, so why a designer? For one thing, you will have no recourse if the work is shoddy