Hello, my name is ***** ***** it is my pleasure to assist you with your question today. So you have a document in writing between you and her which prevents her from operating in competition within the 5 mile radius? Or was it all done verbally?
it was in writing but I'm having difficulty in locating it as it was a few years ago, but Im sending her another letter asking why she has reneged on the original agreement which she signed, if she answers that, that will mean we both know she signed that document. The assurance that she would not poach the kids was verbal, but isn't that binding in law ?
it was in writing, but Im having difficulty in locating it as it was a few years ago. However I have sent her another letter asking for her comments on why she has reneged on that written agreement. If she answers that then that will prove we both know she signed that original document .The agreement not to poach the children was verbal, but isn't that binding in law ?
Both agreements can be binding but the issue is that in the absence of anything concrete in writing to show exactly what was agreed, it could be difficult to show or convince a court that it was in existence and that it was reasonable. The employee’s acknowledgement that she has reneged on an agreement may help to a small extent but it does not guarantee by any length that you will be able to enforce that agreement against her. Restrictive covenants can be seen as a restraint of trade and would only be enforceable if they were carefully drafted and were deemed fair and reasonable in the circumstances, going only as far as to protect what is considered a legitimate business interest in the circumstances. The lack of anything specific in writing makes such restrictions very loose and that more difficult to enforce.
If an employee has acted in alleged breach of a covenant and the employer is intent on pursuing the matter further they can do so. The following are potential outcomes if the employer takes legal action:
However, with both options you have to go to court and as you are the one making the claim, it is for you to convince the court that there a an agreement in place and that it was reasonably drafted and considered fair and reasonable in the circumstances. The lack of anything in writing will make that a risky claim so bear that in mind. You may try a different approach and not actually make a claim but communicate with the employee and warn them to stop breaching the agreements or you would take legal action to deal with her actions. Often such pressure could get the desired results. You may even make the claim to send a strong warning that you are serious about it and then withdraw it if she complies.
I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you