Leaving Company and taking clients

[geoffcapes1]

Hi,

Yesterday I left my previous job due to the owner advising me that would be working on a 'commission only' basis, which is not acceptable to me.

Firstly, I have never had a contract of employment.

Can I take my clients with me?

Secondly, my old boss hasn't paid me for last month. So when I left I took my client files with me. (Negotiating from a position of strength and all that).

Obviously I just want to be paid for last month and advised my old boss that when I got paid, he can have the client files. Otherwise I feared I wouldn't get paid at all.
Secondly he's now saying that it's illegal for me to approach my previous clients as their contract was with his company which was paying me.

Two glaring holes in that argument. 1. He hasn't paid me. 2. Is that legally enforceable with no employment contract. As far as I am aware that is not correct.

Any ideas where I stand.

 

[makemoney]

No contract, so you should be Ok. He must have thought this though before making that decision anyway. But if they are physical files done in company time then that could be argued. You could just write down (Not photo copy), what you need,

 

[geoffcapes1]

He's subsequently said he wants me to sign something that says I do not contact any of them.

You can guess my response!

I just want to get paid for last month so I can pay my bills. And set up my own company.

 

[kulture]

I have no sympathy for you whilst you have stolen the client files from your previous employer. There are two sides to every story, and your employer may simply have not enough cash to pay you yet.

Legally whilst there is no contract in place to stop you stealing clients, the fact that you have stolen the client files will not help. Give the files back now. Take him to court (small claims) for the wages owed. By all means start in business for yourself and find clients of your own (and you are right there is nothing stopping you taking some of his, unless of course they have a contract with him stopping this). And remember this when you employ someone. Always draw up a contract that stops this, treat them properly, pay them on time, and hope they do not screw you.

 

[ITsoldUK]

From the outside looking in, I think wow.

Just two things spring to my mind

1 Has he acted illegally by employing you without a contract and not paying you?

Nope, he has advised you of the current situation (whether it be fiscal or otherwise) and as such, verbally amended your employment conditions of which you are entitled to say 'no' to.

Request the monies owed and then, if no payment comes forth, then proceed with action against the company.

2 Have you acted illegally by removing the files?

Definitely. You are in a dodgy position here should you take this matter to court.

You have acted illegally and removed property that belongs to the company. However justified you feel, you CANNOT take the law into your own hands.

By doing so will only weaken your position should legal proceedings commence.

JMTC I am no lawyer but me mam helped me spot right from wrong.

Good luck on your path of action.

 

[jmc111]

why did they ask you to go commission only in a sales job?

surely if that was the case they would have shown you the additional benefit in your earnings and sold it to you?

how was you % to your target?

what sort of company are they? i am assuming a small business?

if you were such a great sales person then they wouldnt be changing things to harm your income...

i think there may be more than meets the eye here...

and no stealing is wrong...!

if you have left and are starting up does it not sit with you that then going to their clients is a not bit underhand?

 

[geoffcapes1]

The reason I took the files was to ensure that he did pay me, he hs a track record of not paying people for weeks afer they should have been paid.
I have the files ready to take back the moment I am paid an have no intention of keeping them.
I the reason I did not want to work comission only is because I am working on large acounnts which will take time to come to fruition, when one does, then that is fine, as I will have sufficient money behind me to pay the bills. Until the next one does.
Until then I do not.
Rent and al the others will not wait 3-4 months. They need paying now!

 

[fisicx]

It's still theft.

They have every right to report you and to begin proceedings to have you prosecuted for theft.

The fact you haven't been paid is now irrelevant - you have stolen company property.

 

[ITsoldUK]

The reason I took the files was to ensure that he did pay me, he hs a track record of not paying people for weeks afer they should have been paid.

Whilst I fully sympathise with you, if this is the case, why did you stay with them and as I stated earlier, where does this stop?

Did you take the pc's, phones, chairs etc? To make sure you get paid. You CANNOT take the law into your own hands as it will weaken not only your case, but peoples empathy will dissolve too.

I the reason I did not want to work comission only is because I am working on large acounnts which will take time to come to fruition, when one does, then that is fine, as I will have sufficient money behind me to pay the bills. Until the next one does.

So it is your right to say no and move on...

Rent and al the others will not wait 3-4 months. They need paying now!

And you think this will get easier being self employed do you???

The timescales will still remain with the big clients will they not?

I would advise you rethink your position entirely and rise above this feeling of retribution and attempted blackmail (I've got your files, you get them back when you pay) type scenario and try and resolve amicably if not, then take them to court...BEFORE HE TAKES YOU TO COURT/CALLS POLICE FOR NICKING COMPANY PROPERTY

As before, I DO hope you get this sorted...

 

[Employment Law Clinic]

Can I take my clients with me?

Are these your clients, or your ex-employer’s clients that you were paid to handle for the employer? Your clients, you can do what you want with. The employers, not so.

Obviously I just want to be paid for last month and advised my old boss that when I got paid, he can have the client files. Otherwise I feared I wouldn't get paid at all.

Obviously you want more than that, as you’re asking about taking his clients away.

You would have found things so much easier if you simply needed advice on getting paid anything due to you. As it is, you may have caused financial damage to the employer that will be recoverable from you.



Karl Limpert

 

[IANL]

I would return those files straight away.

"Employment contracts include an implied term of good faith and fidelity which encompasses an obligation on employees not to divulge confidential or commercially sensitive information, or use that information in a way detrimental to their employer"

Yes he owes you the money and you can bring a claim against him which he cannot defend. Now on theother hand he can also bring an action against which you cannot defend. Theft of company property.

When he wins you get a criminal record

When you win you get you money but he doesn't get a criminal record

 

[geoffcapes1]

I agree with all of the comments re 'theft' and as I said I have every intention of giving the files back!

The sooner the better.

However, the law is an ass if I have to give files back immediately, but he can get away with not paying me for weeks (or months if it goes to a tribunal). Will he be paying my bank charges, and finding me a new flat when my landlord boots me out for not paying him.
I doubt it!

He has the money to pay as well! And is not returning my calls, texts, or emails on the fact.

 

[Employment Law Clinic]

However, the law is an ass

That's not disputed, but if you think you can take it into your own hands, so too are you.



Karl Limpert

 

[geoffcapes1]

Fair comment.

I've offered the files back. At least he can talk to me then!

 

[geoffcapes1]

He now wants me to sign something to say I will not contact any existing clients before he will pay me.
Blackmail on his part now.

He holds all the aces as he has the financial clout.

 

[IANL]

He has no legal grounds for demanding that. You are owed your money and that's that.

He should have had you sign a document prior to engaging your services if he doesn't want you to contact his clients. All he can do is send you a letter reminding you of your duties of confidetiality.

 

[Bill Ryan]

Not condoning what the OP has done in taking the files but theft requires dishonesty and the intention to permananetly deprive.

OPs defence is weak but arguable that it is not theft.

I am going to run for cover now

Do as others have said - return the files and litigate if you can't get what you are owed.

 

[Moneyman]

Give the files back or he will contact the police and claim that you took the files before he refused to pay you. It would be hard to prove otherwise.
dont sign the non contact agreement without compensation.

Yes the law is often an ass. But what is right and what works are two seperate things.

 

[geoffcapes1]

Thank guys.

Most helpful.

Will keep you informed as to what happens.

 

[geoffcapes1]

Update on the latest position.
My ex boss has point blank refused to pay me stating that because I took my client files (which were given back) he's not going to.
I've now lodged my case with the employment tribunal and have to wait for that. (up to 3 months)

He's said that he will take me to court for something or other. But it'll be a civil case. Apparently.

Joy!

 

[MrCloser]

I would have kept the files, contrary to 'advice' above, the police won't be remotely interested.

You say he has a history of not paying people, without a contract you were a volunteer.

At least keeping the files is lose/lose; he tried to stitch you up, you stitched him up: result = lose/lose.

Sales and marketing people are the among biggest ********ters in the world as you are starting to learn. Put it down to experience and move on.

 

[jfalegal]

The correct position here is that your employer has acted unlawfully in not issuing you with a written contract of employment and you are entitled to compensation for that.

Even though you have no written agreement, a contract still exists and they have also acted unlawfully in not paying you.

They also cannot change the terms of that contract without your agreement and a commission only contract may well breach the rules regarding minimum wages and be unlawful in itself.

I am not sure of the basis on which you left their employment or the length of time you have worked for them, however, you may well also be entitled to recover payment for the notice I assume you didn't get and for unfair dismissal.

They have breached your contract on a number of levels and it is unlikely that any restriction that may have been implied in that agreement will continue to hold water. It is very unlikely, therefore, that there will be anything to prevent you from contacting clients directly or setting up on your own. That said taking the physical files was not the best decision perhaps.

Jenny

 

[Employment Law Clinic]

The correct position here is that your employer has acted unlawfully in not issuing you with a written contract of employment and you are entitled to compensation for that.

On what authority?



Karl Limpert

 

[jfalegal]

I'll leave that for you to look up I think - you haven't taken issue with the fact that an employee has a statutory right to receive a written statement containing the particulars of their employment - there must surely be some remedy for an employer breaching that statutory right!

 

[IANL]

On what authority?



Karl Limpert

I am not sure if this may be what is being referred to.

http://www.businesslink.gov.uk/bdot...4822756&r.l4=1073971494&r.s=sc&type=RESOURCES

"Compensation for failure to issue a written statement
If your employee succeeds in another (unrelated) employment claim, eg unfair dismissal, the tribunal can also award them compensation for your failure to give them a written statement or an accurate or complete statement of change to it - as long as there are no exceptional circumstances that would make this unjust.

The amount of compensation will be two or four weeks' pay (at the tribunal's discretion). A week's pay for this purpose is subject to a statutory limit. For the current limit, see our table of current tribunal compensation limits - Opens in a new window."

 

[captaincloser]

Just came across this thread..

I could write a book about the hundreds of stories I know of how people (salesmen) got paid from 'reluctant' busines owners. From painting the bosses' house windows green to literally taking all the clients to a competitor. I have personally done what employment law advisors would find a bit horryifying..but so what ?

As far as getting paid is concerned I have never, ever, given an inch.

I am not suggesting you do anything and I am certainly not suggesting you break the law.That is your choice but for me there was never a choice to be made and wild horses would not stop me chasing down what was owed to me. Invariably these bad owners either have the money or are responsible for it not being there.

I am only referring to money that has been paid to the companies concerend by clients that I brought to those same companies.

Apparently two wrongs do not make a right. I would be to differ on that where bad business owners are concerned.

 

[Employment Law Clinic]

I am not sure if this may be what is being referred to.

I believe it is Ian, a summary of section 38, Employment Act 2002. It's only when other action is being taken in a tribunal and a judgment is made in favour of the employee that a financial award is made or increased; there's no compensation simply for not issuing a statement of particulars.

I'll leave that for you to look up I think - you haven't taken issue with the fact that an employee has a statutory right to receive a written statement containing the particulars of their employment - there must surely be some remedy for an employer breaching that statutory right!

Employers are obliged to issue a statement in accordance with s. 1, Employment Rights Act 1996, but there's no financial remedy if they fail to do so; the only remedy is referral to an employment tribunal which will determine the contents of the statement.



Karl Limpert

 

[geoffcapes1]

I now have a date for my tribunal (14th February). So it's be interesting to see what happens then, or between now and then. (if anything)

Instead of just paying me my salary and expenses which is what Iwanted for a clean break I have now added all the commission I could think of tha I haven't received. So in effect it's going to cost my boss more than double of what I initially asked for.

Any idea what the penalties would be if once the tribunal goes through, and if I get the decision in my favour, if he still refuses to pay me?
Is a tribunal a legal body or is it effectively 'toothless' and I then have to go to a small (ish) claims court?

 

[IANL]

I now have a date for my tribunal (14th February). So it's be interesting to see what happens then, or between now and then. (if anything)

Instead of just paying me my salary and expenses which is what Iwanted for a clean break I have now added all the commission I could think of tha I haven't received. So in effect it's going to cost my boss more than double of what I initially asked for.

Any idea what the penalties would be if once the tribunal goes through, and if I get the decision in my favour, if he still refuses to pay me?
Is a tribunal a legal body or is it effectively 'toothless' and I then have to go to a small (ish) claims court?

You might this useful

http://www.justice.gov.uk/downloads...nals/guidance-booklets/10_913TJ_May10_WEB.pdf

 

[geoffcapes1]

Excellent! Thanks very much!

Just what I wanted to read!

Far from 'toothless' it seems!

 

[Paul Norman]

There are two seperate issues here.

You should be paid what is owed, established by either contract or established practise in the position. For that you should pursue robustly the money due to you.

With regard to the files, taking clients with you in that way is not ethical. It is a small world, and the fact that you have done that will score against you at some point. I, for one, would not consider employing someone who had done that.

Keep the things seperate. Do the right thing, even if they have not.

 

[Sportsman]

Just found this thread on Google so please excuse me bringing it up again, can someone please help with dilemma i might have regarding employing someone that will bring clients with them from a competitor.

Firstly

The person involved has signed a contact saying that should they leave the company then they will not approach any of the company clients for 12 months.

Secondly

Some 80% of the customers are what the company employed the person for to bring with him anyway when he joined so he has always had the clients/Customers for years anyway.

Basically we are looking at taking a salesman on but don't want to end up in court over it, the company he works for are a bigger company than mine and our currently putting pressure on the salesman for more business and he isn't enjoying working in that environment anymore.

If he did come and brought along some clients where does the law stand on it even though he brought them with him from his previous employment


Thanks

Paul

 

[IANL]

Just found this thread on Google so please excuse me bringing it up again, can someone please help with dilemma i might have regarding employing someone that will bring clients with them from a competitor.

Firstly

The person involved has signed a contact saying that should they leave the company then they will not approach any of the company clients for 12 months.

If you know about this you need to understand the precise wording

Secondly

Some 80% of the customers are what the company employed the person for to bring with him anyway when he joined so he has always had the clients/Customers for years anyway.

Basically we are looking at taking a salesman on but don't want to end up in court over it, the company he works for are a bigger company than mine and our currently putting pressure on the salesman for more business and he isn't enjoying working in that environment anymore.

If he did come and brought along some clients where does the law stand on it even though he brought them with him from his previous employment


Thanks

Paul

If you know this person you are thinking of employing has a restriction on contacting customers of the former company then you will need to ensure he does not do so, (subject to knowing the precise wording) that's if you employ him. Otherwise you might find yourself liable and an action brought against yourself for inducing the former employee to breach his contract

You would be wise to get the contract he currently has and get it checked.

Hope that helps a little