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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45391
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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scottish social agent work - if my contract says that if i

Resolved Question:

scottish social agent work - if my contract says that if i leave their employ i must not work with any of their clients within a year is this enforceable. i am working with a client at present and i want to leave the agency and work with him direct under self directed support. it is only one client and i work 41 hours a week with him at present.
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. does you agency request a finders fee from the employer you are currently working with.

Customer:

No I am with an agency that provides social care to clients. I have been work with the same client for three years and would like to leave the agency and continue to work with the same client direct. My contract says that if I leave their employ I cannot work with any of their client within a year. They said that if I do that they can sue me.

Ben Jones :

OK thank you, ***** ***** it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this evening. There is no need to wait and you will receive an email when I have responded. Thank you

Customer:

I would like to know if they can sue me for taking one of their clients away from them. The client has said that they will leave the agency if I hand in my notice so they would loose the client anyway.

Customer:

wht is your advice

Customer:

I have not received the information where would I find it.

Ben Jones :

Hi, sorry I did post my response yesterday but for some reason it does not appear to have registered so will try again.

Such restrictive covenants can be enforceable if they are there to protect an employer’s legitimate business interests. Legitimate business interests (LBIs) are commonly accepted to include:



  • Goodwill (including supplier and customer connections)

  • Trade secrets and confidential information

  • Stability of the workforce


Therefore, if you are using your connections at work, such as by contacting a client of your employer, when you are not allowed to do so then you could potentially be in breach of that restriction. The key is whether this is a client which legitimately belongs to the employer, for example they have made the efforts to obtain their business and then by you leaving and going to work with them you are going to take away their business from your employer. If you were going to work with them but it would not affect the employer’s business then it is unlikely that the restriction would be enforceable but if by you starting to work with them directly you are going to take away that client’s business from your employer you could potentially be in breach of the restriction.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Hi thanks for that information. The carer was working with two agencies and was working with my son at the agency he was with . We left that agency and the carer introduced him to his present agency. So they did not already have my son on their books. She should have got a finders fee but did not get one. The present agency have not organised anything with regard to my son's care package, everything he does has been sorted out between me and his carer.in my sons package we work out the hour that is worked every day and any resbite and then tell them the monthly hours for the wages. The carer is working solely with my son and does not work with any other client. I would also like to know that if the company does sue the carer for potentially in breach of the restriction what exactly would happen. When she leaves her company and after two weeks she answers an advert in the job centre for a carer to work a client who has autism and it happens to be my son would that then not be in breach of the restriction.

Ben Jones :

If they decide to sue then they have a couple of options:



  • Obtain an interim injunction preventing the employee from doing certain things that would make them in breach of the restrictive covenant, such as preventing them from working for that client, although that is rarely done

  • Seek compensation for damages that have directly resulted from the breach of the covenants, such as lost revenue, although they must be able to justify that such losses have been incurred - they cannot just issue a penalty charge

Customer:

1 My son was with an agency in which his presesent carer worked. We left that agency an the carer introduced us to another care agency in which she worked.

Customer:

2 The carer did not get a fee for introducing my son to this agency. 3 She has been working solely with my son and the agency does not do anything other than pay her wages. 4 We have another agency to cover for sickness and holidays. 5 I have told the agency that if the carer ever left their employ that I would leave their agency. 6 The carer plans to leave the agency at the begining of net year. 7. We will also leave the agency at this time. 8. After two weeks of leaving the agency I will put an advert in the job centre for a carer for my son. 9 The present carer will apply for the job along with any other applicants. 10 As we have not been able to get other carers to stay with my son for longer than a day it is highly unlikely that we would find anyone more suitable. 11 She has been with my son for three years so chances are she will get the job. 12 As the agency did not have my son already on their books when she started working with him, is this still a breach of the restrictive covenant, she brought the business to them. 13 By applying for the job that is in the job centre and she just happens to being applying to work with my son, does that mean that they cannot take action. 14 She is entitled to look for work and apply for jobs and the fact that it is with my son is just a co-incidence.

Customer:

Sorry to keep going over this but we need to know that when she and I leave the agency that we cannot fall foul of the covenant. It would be devastating for her, me and my son if she could not keep working with him. The reason she is leaving the agency is because she has been with them 4 years and they have kept promising her truining in autism etc and they have done nothing for her. The reason we are leaving the agency is because we would get twice as may hour of care for my son by paying the carer direct. The agency does nothing for their money. At present we are doing most of the care and it would allow us to have a better quality of life

Ben Jones :

If she is leaving the agency at her own free will and they will no longer have her business then this will work in your favour because the agency cannot then claim that you are taking away business from them. Had you induced her into leaving so that you can bypass the agency and work directly with her then that would be a different story but if she is leaving anyway and you go on to work with her without affecting the agency's business then it would be difficult for them to justify any sort of court action for breach of the covenant

Ben Jones :

Hope this clarifies things for you

Customer:

Thanks for that can you please send me all the information in a format that I can print out

Ben Jones :

You have a few options:
a) If you see a 'share' button and hover over it you can see the option to print.
b) You could copy and paste this conversation into a Word document or equivalent. You can then save and/or print it and refer to it in the future as necessary.
c) This conversation will be stored in your account on this site so you may return to view it or do any of the above at any time

Customer:

no

Customer:

can you give me a print out of all the questions and answers I may need to use them

Ben Jones :

I cannot give you a print out, but as mentioned you can copy and paste all of the above into a word document and from there you can print them

Customer:

I do not know what button you mean

Ben Jones :

do you not see a share button anywhere?

Customer:

thanks I copied and pasted it thank you for your help

Ben Jones :

you are welcome, all the best

Customer:

ok rating it now as excellent

Customer:

cant get the buttons to light up

Ben Jones :

sorry should work in a mi, thank you

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45391
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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