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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9864
Experience:  I have been practising for 30 years.
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I work company that is very poor to the staff. It's an

Resolved Question:

I work for a company that is very poor to the staff. It's an homecare company. I have looked after this client for nearly two years through this company and now they are going to take me away from them. The client has asked me to work for them privately but in the terms and conditions they have an engagement of carers fees which is 15% of the carers annual salary. Can they do this and if so is there a way round this.
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

With regard to the 15% fee, is this in a contract which you signed and agreed to? Is it a fee of your salary that you are required to pay if you leave and take up employment with a client?

What is the exact wording of the provision?

Customer: replied 1 year ago.
This is the Terms and Conditions for the client and they would have to pay it.
" The introduction,by the purchaser and/or Customer,of a carer to another employee or agency or similar organisation, resulting in engagement of such carers by that third party with the relevent period, will render the purchaser and / or customerliable automatically and without prior notice (verbal or written) to payment of the introduction fee.
The introduction fee will be charged at a rate to 15% of the relevant carers annual salary as at the date of the event giving rise to the obligation on the purchaser or customer to pay the said introduction fee.
Customer: replied 1 year ago.
Carer is on zero hour contract but has not got a contract.
Expert:  F E Smith replied 1 year ago.

Obviously, this is not something for you to worry about because the fee is the fee that would be paid by the customer, and not by you.

I appreciate that it is something that you would need to discuss with the customer but it depends really on how much the customer wants you to carry on working for them.

These clauses are enforceable but it depends whether the customer wants to make the payment and if they are asked for it, and the agency tries to enforce it, they want the argument and possible court proceedings.

You say that the carer is on a zero hours contract but actually doesn’t have a contract, that gives a powerful argument that 15% of nothing is nothing. It does say 15% of “annual salary” and it would be for the court to decide whether it looked at an average over the last few years or not. I’m inclined to think that because this is a zero hours contract and there is nothing written with regard to annual salary, the court would not enforce it.

There is a risk that the agency would pursue it and if it did, those proceedings would have to be defended.

Can I clarify anything for you?

Please do not forget to rate the service positive. It’s an important part of the process whereby experts get paid.

Best wishes

FES.

F E Smith and 4 other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you, ***** ***** given me something to think about.
Expert:  F E Smith replied 1 year ago.

I am glad to have helped.

Best wishes.