[hygiene]

we as a company have had a cleaning contract with a company for six years its been on a rolling one year contract for five years now.. Last month we employed and put a new cleaner into the site low and behold we have just received notice of termination due to the fact our services are no longer needed. We accepted the termination with immediate effect and informed the cleaner of the redundancy. We collected our products today and found that the company had taken on the cleaner on there own terms.. Have i any rights to unfair termination.

[martin19842]

hi there

i would hope that you have in your terms and conditions, the fact that they are unable to employ directly any staff in your employ, for a period of six months from the termination of any contract that they are involved in.

there should also be a condition in your employee contracts of employment, restricting working directly for any client or soliciting work from any client that they had previously worked on

otherwise you might find that you have a problem.

regards

martin

[hygiene]

cheers martin i have been reliably informed we have both points in the contracts. However the cleaning was only in employee with us for five weeks and not yet been issued with a contract so not sure on where i stand on that one

[vacman]

Assuming the clause covers your employee, how do you intend to inforce this part of the contract ? I ask this becuase yours is a problem which comes up again and again on this forum, but no one ever seems able to make the clause 'work' when it comes down to it.

[martin19842]

hi vacman

restraint of trade  clauses usually lose, however if they are in the contract you can at least threaten with them, as they may not seek legal advice.

regards

martin

[Griffus]

I am no expert on this subject but have some experience.

In a former life I was a Logistics Manager. At any given time we used between 20 and 50 Agency Drivers via 20 + separate agencies.

At a sister site an Agency Driver was offered a full time job. This was done without prior consent from the Agency concerned. The first they heard was when the Driver just started to decline work when offered.

Long story short etc.

Agency found out what had happened and requested financial settlement (lost profit + finders fee). My company refused. Agency sued and won. I seem to recall they were awarded 13 weeks full time pay for the driver, less whatever his employment cost would have been. Not sure whether they won the 'finders fee' aspect.

The 13 week thing was due to a specific clause in their contract.

You need to consider whether it will be worth the trouble, stress and potential bad feeling / publicity this may cause prior to taking any action. That said, I would expect you to win your case as long as your T & C's are clear in this point.

If it were me I would go for it!

Start off just writing a letter to them directly. Include your invoice for loss of profit and a 'finders fee'. Give them a set amount of time to pay (your regular settlement terms) and if nothing received then time to decide on your next step.

Good luck.............

[vacman]

How does that work given that the people you speak of were a dedicated 'agency' and the people in this situation are an all-in-one outfit bought in to do a job? I've heard of other sorts of (large-ish) agencies (from all differening work backgrounds) fighting their corner when workers were 'poached', but i thought this was all fairly black & white because it was only the labour they supplied, rather than being hired as some sort of sub-contractor who was bought in to do a specific job, rather than just send the workers?

[Robert Parry]

Ian is quite correct,

The real difference between those who win these sort of cases is the strength of the contract, real contracts, cost money, they are not to be found on the net.

However, hygiene, has done himself no favours, by not following employment rules to the letter, as he quite clearly states that he failed to issue his new employee with a legally binding contract of employment.

It is best practice to issue this contract of employment before the new employee even starts work, along with the other legalities, and the associated paper trail.

Also, any contract, issued by hygiene to either his staff or clients in the course of business, should be professionally drawn up to be legal, fair, non-restrictive and legally enforcable, within the country he operates in, different rules in Scotland, as an example.

Again, I agree with Ian, fire off a polite, but firm letter requesting some form of compensation, however, I would only proceed with legal action if I was 100% sure, that my contracts were written up correctly.

Regards,

Rob

[vacman]

But i'll ask again; how does the fact that Hygeine was offering a complete 'service' fair with the example of the agency who supplied 'labour only'? It's only the labour which has technically gone AWOL here and there were other services bought to the table in this contract, so i am guessing it's more complicated than a straight forward calculation as to how much you intended to make by hiring-out a memeber of staff less how much you've now lost by them going to work for the company direclty?

[martin19842]

hi there

by the time its all been fought over the only people to make any money will be the law firms, therefore are resources not better spent winning more business, and tightening up on the paperwork side of things.

i know of a client that was in a 2 year cleaning contract, they teminated the contract and the cleaning company took them to court for the remainder of the contract, the cleaning company won

but

they only won the profit element of the contract value, as cause they were no longer cleaning the site, they had no labour or materials costs, that was an interesting lesson learnt.

regards

martin

[Robert Parry]

The whole point of any contract, between a company, client or employee is that it must be fair and reasonable, non restrictive and legally enforcable.

Hygiene, obviously has spent both time and money in hiring this "new employee", finding him/her, interviewing, following up references, CRB check, training in H&S/cleaning procedures etc.etc.

Contracts are written to provide protection to all parties involved, hygiene, may again have done himself no favours by terminating his service "with immediate effect".

As, stated in my previous post, contracts are best left to the experts, however, by reading the comments on this thread, 3 breaches of this particular contract have been made, assuming that the information provided by hygiene is correct.

Vacmans point of labour only, as to provision of service has been answered by Martin, the contract matters!

Each case must be viewed very carefully and assessed, but to stand any real chance of success, each part of the whole process must be carried out in the correct order, "battle of the forms etc", contracts written by professionals etc.

Martins post also contains a warning about just how much compensation can be awarded should legal action be taken, no big deal on a one person contract, but if you have 20 to 60 staff on one site?

Regards,

Rob

[vacman]

Hi Robert, i wasnm't suggesting that it didnt in any way 'matter', what i was getting at is that the service provided by Hygene and the service that the employee is providing in is own, are not identical. Therefore i was intrigued to know where the comparison was drawn and on what any 'compensation' would be based.

I am not the least bit suprised to hear that it would set against loss of profits, and hopefully any decent accountant will be keeping profit margins as low as possible. Therefore it is difficult i know, been there, done that in the past. Not over losing staff to the client (well i have been there, but i never pursued it), what i mean is i have had occasion to claim back other losses which inthe event were based against profits 

[trevor perry]

if you have lost the contract then maybe the cleaner would have been transferred to new contractor or in house under TUPE regulations anyway that is unless you had offered the cleaner other work elsewhere.

[JandS]

Would any contract be enforceable if they said the standard of work was poor.

[martin19842]

hi there

regarding the standard of work, you should have term in your t and c stating clearly the process for dealing with poor performance, the notification, the rectification, and the timetable that needs to be adhered to.

you have to protect yourself against clients terminating contracts, just for terminating sake.

inevitably eveybody starts out in business, and they may not have all their paperwork quite ready, but people do learn quickly from errors, we have all done it in some form or other.

regards

martin