any advice appreciated

[jobianne]

I set up my own care company 6 months ago after leaving my old care company, basically service users are unhappy with the service they are receiving (it's really shocking) that's the reason I left, they have heard that I am now all above board care company and they want to come to me, under no circumstances have I approached them.
I have just taken on the first member of staff who used to work for them but they have now put her on garden leave which is understandable, but they are trying to dismiss her with 'poaching service users' this is so far from the truth! this lady has only said that she is leaving as she has a relationship with service users so she felt the right to tell them she was leaving, they became very upset and want to follow her, the carer said no it couldn't happen, as this carer stated it would be stepping on the companies toes. it was left at that, the service user or the service users family have never contacted me in any way and besides they don't know the name of my company! This is just rumours, any how the director is seeing her solicitor today so I don't know what will happen, they were fully aware that I was setting up and gave my backing and support and said 'good on you' I never signed a contract only a terms and conditions letter which set out that this was part of my contract along with the handbook which i never saw! where do I stand? Can they stop me trading? I have several service users who I look after and depend on me for their personal care, what would happen to them?

 

[kulture]

they cannot stop you trading. They can bluff and bluster. They can write to all the clients and say things about you. they can do all sorts of dirty tricks. They could even try and sue you.

BUT if you have not signed a contract saying you will not poach clients they can do nothing. Further even if you have signed a contract as you have not poached clients they can again do nothing.

 

[A City Law Firm LLP]

Hi
If you had signed a contract that contained post-termination clauses or did the staff you hired then you could face an injunction or claim. They would need to show they have suffered loss as a result of you breaching this agreement.

If you or the staff member had no contract then you can pretty much do as you are doing. If they make false statements about you you can sue for defamation and potentially take an injunction out against them for causing you loss.

The issue I would have concerns about - was your contract subject to the Handbook - if so does this contain those provisions - if it does seek legal advice as soon as possible.

If you want me to take a look let me know - I run A City Law Firm LLP in London

 

[kulture]

If the contract or the handbook says no poaching of clients, and the OP says that they have not poached any clients, then what case do they have?

If the contract or handbook says do not set up in business as a competitor, then this is restraint of trade and again what case do they have?

As the LLP says, the only potential claim they may have is the poaching of staff. If they are considering disciplinary action against that member of staff, i.e. sacking them, then they are harming their own case. The member of staff cannot be that valuable if they sack them.

 

[jobianne]

I never saw the handbook as they never had one to hand, the staff member said the same, she was handed one but they needed it back there and then to give to other staff to have a quick read she never read it. Like i said in the op i have never approached them they have contacted me, may i also point out that i am alot more expensive than my ex employers so if i had set out to do what they are thinking i would have just under cut them by alot.
when i told my HR manager that i was setting up she just said be careful i think there is a clause with regards to distance (25 miles) she said that that was the only thing she could remember being in the handbook but again she couldn't find it for me (she snook around the office one night to try and find me one!)
I really don't want to start playing tit for tat but if she starts threatening me with solicitors letters then im sorry but i have so much on this company with regards to the care they provide (its shocking) they are also breaking the law with working time regulations, obtaining money by deception, the list goes on........... but id rather stay clear of that game

 

[jobianne]

sorry city law firm I never answered your question, I only had a sheet of paper with the 'terms and conditions of employment' on I signed this, but at the top of this in small grey letters it states that this along with the handbook forms part of my contract, I never read the handbook or signed to say I had read the handbook.

 

[A City Law Firm LLP]

If you signed a contract saying the handbook is part of the contract they will try and say the clauses therein are part of the contract. If you can evidence/state you were never given the opportunity to see the handbook then its arguable (strongly) these terms were not incorporated and thus not accepted and part of the contract.

To make post termination clauses binding and enforceable they also have to show - they are reasonable (not stopping you working) - that you have actually breached them - that they have suffered a loss as a result

Termination clauses can be reasonable if they
- stop you setting up or working in competition (usually 3-12 months) but must be either a specific area or niche profession etc
- non-poaching of clients or staff (self explanatory)
Usually the clauses take into account clients and staff approaching you and thus you working with them and causing former employer a loss still a breach

Sounds like you can argue terms not accepted or part of the contract but they may issues an injunction or claim for losses which you can then defend.