Problems with my carer’s contract
Discussion
I have a carer in 3 times a day to help me do the basic stuff like dressing me which I cant do any more because of my health. This also takes the pressure off my wife.
For the last few years, I’ve been using a company who are part of a national chain . Initially they were great but over the last year they’ve been awful. The carers themselves have been, mostly, wonderful. It’s been the local office who have, among many things, not allocated calls to carers leaving me alone, not informed me of changes and attempted to charge me for cancelled calls which had been notified. Every time I’ve complained by email, the response has been to either raise a complaint which we never hear the results of or reassure me it wont happen again. It always does- sometimes the next week. Carers often had moans about how they were treated.
I became very disillusioned with them, and told many of the carers who I had a good relationship with, I was seriously thinking of going else where.
A few months ago, one of the best carers told me she’d had enough and had handed her notice in and would be leaving. She’s very professional and didn’t initially tell me where she was going.
I suggested to her she ought to work for herself and me and the wife would be very happy if she came to us.
A few weeks later she left, worked for a new agency part time but also came to us in the mornings and lunch.
It’s been very successful. We can relie on her in a way we never could with the original agency. It was all done properly with insurance and contracts etc
I still retained calls in the evening with the old company although “L” now covers 2 of them as they informed them couldn’t cover 2 of the days
This week “L.” received a letter from the head office of the old company saying she was in breach of her old contract. This states she isn’t allowed to solicit or entice clients away if she leaves for 6 months.
As far as we’re concerned at no point has she done this. Infact it was our idea and I’d be happy to stand up in Court and say this and also tell the whole reason why I was so unhappy with their service.
They’ve threatened to seek loss of income from her from my calls plus legal fees.
Can they do this and is it likely to succeed ?
I feel guilty as “L” is a one parent family, a friend now and a fantastic carer.
Incidentally they have no concrete evidence, only circumstancl.
Any advice for her?
For the last few years, I’ve been using a company who are part of a national chain . Initially they were great but over the last year they’ve been awful. The carers themselves have been, mostly, wonderful. It’s been the local office who have, among many things, not allocated calls to carers leaving me alone, not informed me of changes and attempted to charge me for cancelled calls which had been notified. Every time I’ve complained by email, the response has been to either raise a complaint which we never hear the results of or reassure me it wont happen again. It always does- sometimes the next week. Carers often had moans about how they were treated.
I became very disillusioned with them, and told many of the carers who I had a good relationship with, I was seriously thinking of going else where.
A few months ago, one of the best carers told me she’d had enough and had handed her notice in and would be leaving. She’s very professional and didn’t initially tell me where she was going.
I suggested to her she ought to work for herself and me and the wife would be very happy if she came to us.
A few weeks later she left, worked for a new agency part time but also came to us in the mornings and lunch.
It’s been very successful. We can relie on her in a way we never could with the original agency. It was all done properly with insurance and contracts etc
I still retained calls in the evening with the old company although “L” now covers 2 of them as they informed them couldn’t cover 2 of the days
This week “L.” received a letter from the head office of the old company saying she was in breach of her old contract. This states she isn’t allowed to solicit or entice clients away if she leaves for 6 months.
As far as we’re concerned at no point has she done this. Infact it was our idea and I’d be happy to stand up in Court and say this and also tell the whole reason why I was so unhappy with their service.
They’ve threatened to seek loss of income from her from my calls plus legal fees.
Can they do this and is it likely to succeed ?
I feel guilty as “L” is a one parent family, a friend now and a fantastic carer.
Incidentally they have no concrete evidence, only circumstancl.
Any advice for her?
Putting aside the question of enforceability (on which there are employment lawyers on here that can comment) you need to check the exact wording of the clause. If it’s as you say, she hasn’t done that. Therefore not in breach.
That aside, if they couldn’t actually always service your needs, and you can evidence that you (which you can, via a witness statement, records of your complaints of missed calls vs what you contracted for) that then attacks the quantum of their claim. If they couldn’t actually provide the service how could they have made money.
Also, do they make a profit - have a look at companies house.
If you could help her wrap all of that (as an assertion, no need to collect or provide the evidence at this stage) into a letter back to the ex employer that will stop and make them think.
I would accompany it with a letter from you pointing out all the times they let you down and that you’d be minded to add google reviews and go to the WELLINGBOROUGH gazette and post with your story about how they operate.
Also tell them you’d drag yourself to court, despite your needs, to give evidence on her behalf.
This would be neat and drink to a junior litigation solicitor or trainee at a local practice. Do you have a relationship with any firm, they might do a fixed fee given the care company are s
ts.
But you also still rely on them. So maybe find out the name of one of the statutory directors from companies house online and have a quiet chat as a first step. You can always do the rest later if they don’t back down.
That aside, if they couldn’t actually always service your needs, and you can evidence that you (which you can, via a witness statement, records of your complaints of missed calls vs what you contracted for) that then attacks the quantum of their claim. If they couldn’t actually provide the service how could they have made money.
Also, do they make a profit - have a look at companies house.
If you could help her wrap all of that (as an assertion, no need to collect or provide the evidence at this stage) into a letter back to the ex employer that will stop and make them think.
I would accompany it with a letter from you pointing out all the times they let you down and that you’d be minded to add google reviews and go to the WELLINGBOROUGH gazette and post with your story about how they operate.
Also tell them you’d drag yourself to court, despite your needs, to give evidence on her behalf.
This would be neat and drink to a junior litigation solicitor or trainee at a local practice. Do you have a relationship with any firm, they might do a fixed fee given the care company are s
ts. But you also still rely on them. So maybe find out the name of one of the statutory directors from companies house online and have a quiet chat as a first step. You can always do the rest later if they don’t back down.
Edited by Austin_Metro on Thursday 10th August 22:26
Edited by Austin_Metro on Thursday 10th August 22:27
stuartmmcfc said:
I have a carer in 3 times a day to help me do the basic stuff like dressing me which I cant do any more because of my health. This also takes the pressure off my wife.
For the last few years, I’ve been using a company who are part of a national chain . Initially they were great but over the last year they’ve been awful. The carers themselves have been, mostly, wonderful. It’s been the local office who have, among many things, not allocated calls to carers leaving me alone, not informed me of changes and attempted to charge me for cancelled calls which had been notified. Every time I’ve complained by email, the response has been to either raise a complaint which we never hear the results of or reassure me it wont happen again. It always does- sometimes the next week. Carers often had moans about how they were treated.
I became very disillusioned with them, and told many of the carers who I had a good relationship with, I was seriously thinking of going else where.
A few months ago, one of the best carers told me she’d had enough and had handed her notice in and would be leaving. She’s very professional and didn’t initially tell me where she was going.
I suggested to her she ought to work for herself and me and the wife would be very happy if she came to us.
A few weeks later she left, worked for a new agency part time but also came to us in the mornings and lunch.
It’s been very successful. We can relie on her in a way we never could with the original agency. It was all done properly with insurance and contracts etc
I still retained calls in the evening with the old company although “L” now covers 2 of them as they informed them couldn’t cover 2 of the days
This week “L.” received a letter from the head office of the old company saying she was in breach of her old contract. This states she isn’t allowed to solicit or entice clients away if she leaves for 6 months.
As far as we’re concerned at no point has she done this. Infact it was our idea and I’d be happy to stand up in Court and say this and also tell the whole reason why I was so unhappy with their service.
They’ve threatened to seek loss of income from her from my calls plus legal fees.
Can they do this and is it likely to succeed ?
I feel guilty as “L” is a one parent family, a friend now and a fantastic carer.
Incidentally they have no concrete evidence, only circumstancl.
Any advice for her?
In my view she would be wise to cease and desist here, because if it gets to court there’s a high chance she’ll lose. She should take proper legal advice.For the last few years, I’ve been using a company who are part of a national chain . Initially they were great but over the last year they’ve been awful. The carers themselves have been, mostly, wonderful. It’s been the local office who have, among many things, not allocated calls to carers leaving me alone, not informed me of changes and attempted to charge me for cancelled calls which had been notified. Every time I’ve complained by email, the response has been to either raise a complaint which we never hear the results of or reassure me it wont happen again. It always does- sometimes the next week. Carers often had moans about how they were treated.
I became very disillusioned with them, and told many of the carers who I had a good relationship with, I was seriously thinking of going else where.
A few months ago, one of the best carers told me she’d had enough and had handed her notice in and would be leaving. She’s very professional and didn’t initially tell me where she was going.
I suggested to her she ought to work for herself and me and the wife would be very happy if she came to us.
A few weeks later she left, worked for a new agency part time but also came to us in the mornings and lunch.
It’s been very successful. We can relie on her in a way we never could with the original agency. It was all done properly with insurance and contracts etc
I still retained calls in the evening with the old company although “L” now covers 2 of them as they informed them couldn’t cover 2 of the days
This week “L.” received a letter from the head office of the old company saying she was in breach of her old contract. This states she isn’t allowed to solicit or entice clients away if she leaves for 6 months.
As far as we’re concerned at no point has she done this. Infact it was our idea and I’d be happy to stand up in Court and say this and also tell the whole reason why I was so unhappy with their service.
They’ve threatened to seek loss of income from her from my calls plus legal fees.
Can they do this and is it likely to succeed ?
I feel guilty as “L” is a one parent family, a friend now and a fantastic carer.
Incidentally they have no concrete evidence, only circumstancl.
Any advice for her?
Your dissatisfaction with her former employer is no defence to her breach of contract. It may have been a defence if you had ceased your services with them entirely for a period before contracting directly with the carer as you would have no longer been a client of theirs.
High Court Judgement around non-solicitation: http://www.bailii.org/ew/cases/EWHC/Mercantile/201...
A pertinent paragraph in the judgement:
It matters not who initiates the contact. The question of whether solicitation occurs depends upon the substance of what passes between parties once they are in contact with each other. There is solicitation of a client by a former employee if the former employee in substance conveys the message that the former employee is willing to deal with the client and, by whatever means, encourages the client to do so.
Given the nature of the services here, it is patently obvious that in offering her services directly to you that you would cease or reduce the services from the former employer. Merely agreeing to visit and provide services to you would probably amount to encouragement and so solicitation would have occurred.
The first question is if she’s done it for you, how many other former clients is she servicing?
It all depends on the former employers appetite for a day in court. A solicitors letter in response stating she hasn’t solicited any clients and a request to provide any evidence that she has may be enough to head this off at minimal expense.
quinny100 said:
In my view she would be wise to cease and desist here, because if it gets to court there’s a high chance she’ll lose. She should take proper legal advice.
Your dissatisfaction with her former employer is no defence to her breach of contract. It may have been a defence if you had ceased your services with them entirely for a period before contracting directly with the carer as you would have no longer been a client of theirs.
High Court Judgement around non-solicitation: http://www.bailii.org/ew/cases/EWHC/Mercantile/201...
A pertinent paragraph in the judgement:
It matters not who initiates the contact. The question of whether solicitation occurs depends upon the substance of what passes between parties once they are in contact with each other. There is solicitation of a client by a former employee if the former employee in substance conveys the message that the former employee is willing to deal with the client and, by whatever means, encourages the client to do so.
Given the nature of the services here, it is patently obvious that in offering her services directly to you that you would cease or reduce the services from the former employer. Merely agreeing to visit and provide services to you would probably amount to encouragement and so solicitation would have occurred.
The first question is if she’s done it for you, how many other former clients is she servicing?
It all depends on the former employers appetite for a day in court. A solicitors letter in response stating she hasn’t solicited any clients and a request to provide any evidence that she has may be enough to head this off at minimal expense.
Quinny - you’ve picked the worst part of that case (only). Your dissatisfaction with her former employer is no defence to her breach of contract. It may have been a defence if you had ceased your services with them entirely for a period before contracting directly with the carer as you would have no longer been a client of theirs.
High Court Judgement around non-solicitation: http://www.bailii.org/ew/cases/EWHC/Mercantile/201...
A pertinent paragraph in the judgement:
It matters not who initiates the contact. The question of whether solicitation occurs depends upon the substance of what passes between parties once they are in contact with each other. There is solicitation of a client by a former employee if the former employee in substance conveys the message that the former employee is willing to deal with the client and, by whatever means, encourages the client to do so.
Given the nature of the services here, it is patently obvious that in offering her services directly to you that you would cease or reduce the services from the former employer. Merely agreeing to visit and provide services to you would probably amount to encouragement and so solicitation would have occurred.
The first question is if she’s done it for you, how many other former clients is she servicing?
It all depends on the former employers appetite for a day in court. A solicitors letter in response stating she hasn’t solicited any clients and a request to provide any evidence that she has may be enough to head this off at minimal expense.
The defendant sold his accountancy firm for a million quid. Had a restrictive covenant and started work his old clients. The judgment specifically says those clauses are construed more harshly than those in a simple employment contract.
Para 15 says:
As stated by Lord Herschell in Trego v. Hunt [supra] on page 20: " it must be treated as settled that whenever the goodwill of a business is sold the vendor does not, by reason only of that sale, come under a restriction not to carry on a competing business". Hence, in the instant case the Defendant was perfectly entitled to compete for business with the claimants in the area and to undertake work for his previous clients if they solicited him to do so without his importuning them.
So exactly what went on at the meeting where the job was offered is important. There is no absolute bar on this carer working for the OP.
That said, as I think you indicate, it would be instructive to know if the carer has taken other ex clients of the care company. As that would likely to be evidence pointing towards a breach.
quinny100 said:
In my view she would be wise to cease and desist here, because if it gets to court there’s a high chance she’ll lose. She should take proper legal advice.
How can you say there's a high chance she will lose unless you're in a position to give exactly the legal advice you're suggesting?I'm not an up to date expert in this area. However,
- Stopping a former employee working for competitors or customers or setting up on their own is extremely difficult, especially if the job doesn't involve any unique knowledge or skills specific to the former employer. It is almost inconceivable that the role of carer involves such knowledge or skills.
- However, it is possible for a reasonable period of time to prevent a former employee from soliciting business from customers
- It is also possible to prevent a former employee from using the former employer's proprietary information, including list of customers.
There's no need to panic, but if in reality she's taken on a number of clients from her former employer she might usefully seek legal advice. If nothing else a solicitor's letter sent to an aggressive former employer might shut them up.
Austin_Metro said:
Quinny - you’ve picked the worst part of that case (only).
The defendant sold his accountancy firm for a million quid. Had a restrictive covenant and started work his old clients. The judgment specifically says those clauses are construed more harshly than those in a simple employment contract.
Para 15 says:
As stated by Lord Herschell in Trego v. Hunt [supra] on page 20: " it must be treated as settled that whenever the goodwill of a business is sold the vendor does not, by reason only of that sale, come under a restriction not to carry on a competing business". Hence, in the instant case the Defendant was perfectly entitled to compete for business with the claimants in the area and to undertake work for his previous clients if they solicited him to do so without his importuning them.
So exactly what went on at the meeting where the job was offered is important. There is no absolute bar on this carer working for the OP.
That said, as I think you indicate, it would be instructive to know if the carer has taken other ex clients of the care company. As that would likely to be evidence pointing towards a breach.
And only if the carer approached the clients. If the clients approached the carer then maybe no breach occurred The defendant sold his accountancy firm for a million quid. Had a restrictive covenant and started work his old clients. The judgment specifically says those clauses are construed more harshly than those in a simple employment contract.
Para 15 says:
As stated by Lord Herschell in Trego v. Hunt [supra] on page 20: " it must be treated as settled that whenever the goodwill of a business is sold the vendor does not, by reason only of that sale, come under a restriction not to carry on a competing business". Hence, in the instant case the Defendant was perfectly entitled to compete for business with the claimants in the area and to undertake work for his previous clients if they solicited him to do so without his importuning them.
So exactly what went on at the meeting where the job was offered is important. There is no absolute bar on this carer working for the OP.
That said, as I think you indicate, it would be instructive to know if the carer has taken other ex clients of the care company. As that would likely to be evidence pointing towards a breach.
Austin_Metro said:
That said, as I think you indicate, it would be instructive to know if the carer has taken other ex clients of the care company. As that would likely to be evidence pointing towards a breach.
I've just read your post, made while I was preparing mine. I see we have both made the same point, which is the nub of this matter.Thank you everyone for replying.
As far as I’m aware, “L” has just taken on a client this week who used to use to use her old employees whom had similar issues with their service and whom she’d formed equally strong bonds with.
I suspect that this is where the issue has started from. She was dropping off the new contract when she bumped into another carer who was also there (despite the call having been cancelled some days ago).unfortunately, from my own experience, the other carer is a nasty piece of work and probably grassed her up.
To reiterate, my involvement is that I don’t like bullies and “L” is a very good carer and the old lot are a bit inept!
Another question is if “L” did work for me that the other company NEVER did ie weekends would they have any claim over this?
As far as I’m aware, “L” has just taken on a client this week who used to use to use her old employees whom had similar issues with their service and whom she’d formed equally strong bonds with.
I suspect that this is where the issue has started from. She was dropping off the new contract when she bumped into another carer who was also there (despite the call having been cancelled some days ago).unfortunately, from my own experience, the other carer is a nasty piece of work and probably grassed her up.
To reiterate, my involvement is that I don’t like bullies and “L” is a very good carer and the old lot are a bit inept!
Another question is if “L” did work for me that the other company NEVER did ie weekends would they have any claim over this?
I have no legal experience but have experience of this when I worked in the NHS.
I would advise her to state very little (no mention of grievances or anything at all) and repond asking for more details with a single question at a time. "I would like to resolve this as soon as possible, Could you provide me with the evidence of xyz..." can you provide me with the dates and times you believe I was in breach...." "can you send me a signed copy of the contract etc. ask for clarity on calculations of the amount owed etc. this will last months and run down the worker tasked with dealing with it. Witnesses will back out etc. If it does go to court she will have tons of statements from them to pick holes in, and they will still be trying to get an admission or solid evidence which wont be forthcoming.
This was successful for me and the NHS have a huge legal team, I doubt a care agency have the resources and time to spend that the NHS did.
I would advise her to state very little (no mention of grievances or anything at all) and repond asking for more details with a single question at a time. "I would like to resolve this as soon as possible, Could you provide me with the evidence of xyz..." can you provide me with the dates and times you believe I was in breach...." "can you send me a signed copy of the contract etc. ask for clarity on calculations of the amount owed etc. this will last months and run down the worker tasked with dealing with it. Witnesses will back out etc. If it does go to court she will have tons of statements from them to pick holes in, and they will still be trying to get an admission or solid evidence which wont be forthcoming.
This was successful for me and the NHS have a huge legal team, I doubt a care agency have the resources and time to spend that the NHS did.
Edited by Decky_Q on Friday 11th August 14:35
Edited by Decky_Q on Friday 11th August 14:36
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