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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44382
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I hired a consultant to work with my company. In March I sent

Customer Question

I hired a consultant to work with my company. In March I sent a potential agreement to be signed along with an NDA with a start date in March. This was a standard consultancy agreement which included a 3 month notice period for both parties.
Nothing was signed by either party but we started to work together on a similiar agreement for the previous 3 months until June. At the beginning of June due to non-performance I gave notice of 1 month that should targets not be achieved we would terminate. She has since started a smeer campaign against my company including calling clients and partners saying we are a fraud etc
She is based in Spain and has company documents which she has failed to return despite a number of requests.
She is now claiming that she is going to take me to court and sue me for the 3 months notice period that was on the original unsigned document.
What is my legal standing
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Is the smear campaign something she did whilst still employed by you?
Customer: replied 1 year ago.

It is something she has started in the last 2 weeks - she advised me a few days after we finished that she planned to sue and ruin me and the company.

In the contract at states the consultant wouldn't engage in anything which would harm the business - so either we are working to the contract or we are not.

At that time we had also offered her a package to work on commission only due to her underperformance

Expert:  Ben Jones replied 1 year ago.
Hello, whilst the original agreement was not signed by either party, it could still be legally binding between you if there was an implied acceptance. There is no legal requirement for a signature to make the document legally binding and the action of the parties could have made it binding. The most common example is if the parties had started to work under the terms of the agreement and it was clear that they had intended for these terms to apply. So if the agreement contained certain clauses such as the nature of the work, payment, etc and you both started to adhere to these terms then the full agreement is likely to have become the binding document between you, including the notice period. So unless you can shoe to the contrary, this would have been the binding agreement between you and she would have been entitled to the 3 months’ notice period. However, if you can show that she has committed a fundamental breach of contract, you could try and argue that the agreement has become void and she could be terminated with no notice. There does however need to be some serious breach of contract on her part. So if the smear campaign had started whilst she was under contract with you, then you could potentially use that as a reason to terminate immediately. Had this begun after the agreement had terminated then it would not be something you can rely on as there would be no breach as the contract has ended. Also there is no guarantee she will go to court, you could potentially try and call her bluff. She may find it difficult to submit or pursue a claim from abroad so it could be all empty threats. Until a formal claim has been submitted in court there is little she can do. Therefore, you could try and see how far she intends on taking this and if a claim is eventually submitted you could reconsider your position and see whether it is worth negotiating and agreeing on some form of payment, whether for the full or part of the notice period. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.

Hi Ben

Thanks for the feedback. 1 Final thing. In the consultancy contract we have a clause that states it will be a breach should they not return company documents or information when requested. I had at start-up phase given the consultant the database to call from and since May had been requesting that document to be returned with the updates on who had been called and the status. That document was never returned despite nurmerous email requests and agreements that she would return.

I maybe clutching at straws but as she has now damaged the business and the business reputation I am reluctant to pay her 3k as well.

Is this an option to cancel the contract as a breach?


Expert:  Ben Jones replied 1 year ago.
Yes you may indeed try to use that as a reason for ending the contract early, especially if it has adversely affected the business. She could challenge it if she is unhappy with it and it would be for her to decide on whether to take it to court or not but that is her right if she wanted to. It is then for a court to decide if this breach was serious enough to warrant the early termination of the contract and allow you not to pay her. There is no definitive answer at this point unfortunately and only a court can decide if that was the case, but as mentioned it does depend on her taking it there and there is no guarantee of that. Hope this clarifies?
Expert:  Ben Jones replied 1 year ago.
Hello, I see you have read my response to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.

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