Reply to: Contract Breach (Received Letter from Solicitor)..Please help..

[Old Greg]

when are you going to see Judge ? any news on your situation ?. Thanks Greg

Still trying to get a date. MyCo is suing PimpCo for non payment of final invoices. PimpCo is counterclaiming for damages following breach of non compete clause.

[Lance]

Any update?

Depending on if the opt out was done correctly (most aren't) the The Conduct of Employment Agencies and Employment Businesses Regulations 2003 state the maximum handcuff clause is 14 weeks from the start or 8 weeks from the end of an engagement.



Pay the £2800 and offset it against your corp tax

cool. I didn't know that.

But rather than pay the £2800, I'd string it out a little and be happy to settle for half that as it's less than a lawyer would cost.

[SimonMac]

Any update?

Depending on if the opt out was done correctly (most aren't) the The Conduct of Employment Agencies and Employment Businesses Regulations 2003 state the maximum handcuff clause is 14 weeks from the start or 8 weeks from the end of an engagement.

(4) Any term of a contract between an employment business and a hirer which is contingent on any of the following events, namely a work-seeker—

(a)taking up employment with the hirer;
(b)taking up employment with any person (other than the hirer) to whom the hirer has introduced him; or
(c)working for the hirer pursuant to being supplied by another employment business,
is unenforceable by the employment business in relation to the event concerned where the work-seeker begins such employment or begins working for the hirer pursuant to being supplied by another employment business, as the case may be, after the end of the relevant period.

(5) In paragraph (4), “the relevant period” means whichever of the following periods ends later, namely—

(a)the period of 8 weeks commencing on the day after the day on which the work-seeker last worked for the hirer pursuant to being supplied by the employment business; or
(b)subject to paragraph (6), the period of 14 weeks commencing on the first day on which the work-seeker worked for the hirer pursuant to the supply of that work-seeker to that hirer by the employment business.

Pay the £2800 and offset it against your corp tax

[Lance]

Thanks. I will not share any details.
The job i am doing now is complete different from what i was doing. My project , my role and line manager, everything is different.

that is important. If the agency/consulatncy try to claim anything legally it will be on the basis of losses they've incurred.
If they are not able to offer what yiou are now doing, for whatever reason, it weakens their case against you. Still got the handcluff clauses to worry about though. I do think you need to talk to a legal expert though. It will cost around £1500 (pay that from your company while you can) but IMO is well worth it against the potential losses (6 months at consulancy rates could easily exceed £100k).

[SimonMac]

Who was the client on your original contract?

If it was the consultancy, then you're not in breach - you're now working for the PS body.

Arguably, you're employed by the umbrella, therefore not providing services or products "directly".

IANAL


(and it's advice )

Usually there is a line in the handcuff clause along the lines.... "client or customer of client"

I could potentially be in a similar boat, so will watch with interest!

[Ongole]

just make sure you respond in such a way that you don't simply provide evidence of what you've done. Leave the evidential burden to them.

Thanks

[Ongole]

Funnily enough, this is approximately the position I find myself. We'll see what the judge says.

when are you going to see Judge ? any news on your situation ?. Thanks Greg

[mudskipper]

----
They have send the message to my limited company and mentioned my name since i am the director of the company.

exact terms of handcuff clause...

" The Contractor will not accept work, provide services or products directly to the Client or subsidiary
during the period of this contract or for a period of twelve months from the termination of this
contract without the written consent of the Company."

Who was the client on your original contract?

If it was the consultancy, then you're not in breach - you're now working for the PS body.

Arguably, you're employed by the umbrella, therefore not providing services or products "directly".

IANAL


(and it's advice )

[Ongole]

This is new information. God knows why you people don't mention important stuff like "not only am I shafting the agency, but also the consultancy who are onsite and have witnessed me there doing the same bloody job"
It was always going to get legal in that situation......



First things first then. You need to do a GDPR DSAR for the consultancy company Does an organisation need my consent? | ICO
Find out what they've shared, with whom, and the reasoning they think it's valid or lawful to have done so. That way you'll find out exactly what's been shared.

Then you better get lawyered up. The consultancy will have a whole load more reasons to pursue this, and a whole load more evidence. And they may well chase you for their lost money which will be a huge amount larger than the agency's.

And FFS don't tell anyone what's going on. And don't tell anyone you're closing your LTD. Keep schtum.

Thanks. I will not share any details.
The job i am doing now is complete different from what i was doing. My project , my role and line manager, everything is different.

[NotAllThere]

Sometimes it ends up as a call on the speaker phone between the client and the pimp where the pimp gets a stern telling off and the client puts the call on mute now and then as one or both of us are laughing too hard.

I've been in that situation twice. Once as a client and once as a contractor. Highly entertaining.

[Lance]

Between the agency and public sector company there is a consulting company with my earlier assignment, and i was contracted to consulting company (working for public sector at onsite). I think, the manager from the consulting company told the agency.

Thanks for your advise, really appreciated.

This is new information. God knows why you people don't mention important stuff like "not only am I shafting the agency, but also the consultancy who are onsite and have witnessed me there doing the same bloody job"
It was always going to get legal in that situation......



First things first then. You need to do a GDPR DSAR for the consultancy company https://ico.org.uk/your-data-matters...ed-my-consent/
Find out what they've shared, with whom, and the reasoning they think it's valid or lawful to have done so. That way you'll find out exactly what's been shared.

Then you better get lawyered up. The consultancy will have a whole load more reasons to pursue this, and a whole load more evidence. And they may well chase you for their lost money which will be a huge amount larger than the agency's.

And FFS don't tell anyone what's going on. And don't tell anyone you're closing your LTD. Keep schtum.

[Ongole]

Does your company have any assets? Did it have any when this letter was received? If so, you could be in trouble for removing any assets from the company while there is an outstanding obligation of the company, and they are claiming there is an outstanding obligation.

You may need to be careful here....

Thanks for your advise. Really appreciated..

[Ongole]

Someone (possibly you) signed that contract in the capacity of an officer of the company, not personally. I don't believe you (as an employee) can be bound by the terms of a contract you didn't agree to in a personal capacity. Even if the contract says that the company will ensure that staff will agree to these terms.

So unless they were intelligent enough to also get you (as an employee of your Ltd) to sign an agreement saying you agree to a personal handcuff clause, they have no claim against you personally, the only putative claim is against YourCo Ltd.

I don't know how long your original contract at the client was for, but it's widely agreed that a 12-month handcuff clause is not likely to be enforceable, due to being an unreasonable restraint of trade. So, even if they could legitimately show a loss (which is required for any claim to succeed), I think they're on dodgy ground with that handcuff clause. And if it is deemed unreasonable, it doesn't matter that you went back after only 3 months because the clause has to either stand or fail in its entirety.

So I think they're just trying it on.

In your position, I'd continue with the company closure and ignore letters from the solicitor or reply with a letter saying "Thank you for your enquiry. Ongole is no longer employed by MyCo". Whatever you do, do not let the agency/solicitor know that you're closing your company down.

But the question I'd really like to know the answer to here is, how did they know you were back working for that client? I hope you didn't tell them....

Between the agency and public sector company there is a consulting company with my earlier assignment, and i was contracted to consulting company (working for public sector at onsite). I think, the manager from the consulting company told the agency.

Thanks for your advise, really appreciated.

[Snooky]

" The Contractor will not accept work, provide services or products directly to the Client or subsidiary during the period of this contract or for a period of twelve months from the termination of this contract without the written consent of the Company."

Someone (possibly you) signed that contract in the capacity of an officer of the company, not personally. I don't believe you (as an employee) can be bound by the terms of a contract you didn't agree to in a personal capacity. Even if the contract says that the company will ensure that staff will agree to these terms.

So unless they were intelligent enough to also get you (as an employee of your Ltd) to sign an agreement saying you agree to a personal handcuff clause, they have no claim against you personally, the only putative claim is against YourCo Ltd.

I don't know how long your original contract at the client was for, but it's widely agreed that a 12-month handcuff clause is not likely to be enforceable, due to being an unreasonable restraint of trade. So, even if they could legitimately show a loss (which is required for any claim to succeed), I think they're on dodgy ground with that handcuff clause. And if it is deemed unreasonable, it doesn't matter that you went back after only 3 months because the clause has to either stand or fail in its entirety.

So I think they're just trying it on.

In your position, I'd continue with the company closure and ignore letters from the solicitor or reply with a letter saying "Thank you for your enquiry. Ongole is no longer employed by MyCo". Whatever you do, do not let the agency/solicitor know that you're closing your company down.

But the question I'd really like to know the answer to here is, how did they know you were back working for that client? I hope you didn't tell them....

[WordIsBond]

My accountant is very slow and VAT deregister application already submitted to HMRC.

Does your company have any assets? Did it have any when this letter was received? If so, you could be in trouble for removing any assets from the company while there is an outstanding obligation of the company, and they are claiming there is an outstanding obligation.

You may need to be careful here....