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AIBU?

Share your dilemmas and get honest opinions from other Mumsnetters.

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Original poster

to think my "friend" is in the wrong and not me

38 replies

allisgood1 · 01/02/2014 10:38

First I will say I know I should never have done business with a friend. Lesson learned. No lectures needed.

So I have a friend who I contracted 5 years ago (she is on a self-employed basis) to do some tutoring work for my company. She's worked with me since. She makes her own hours, uses her own materials, but follows my guidelines for teaching (what to teach, etc). Her contract states that she cannot continue working with any client who terminates their contract with me, and if she leaves she cannot continue to work with any of my existing clients. I pay her (after invoicing clients) and she only gets paid for the hours she works.

Wednesday she told me she wants to terminate her contract, but she wants to keep one of the clients. I told her no. If she wants to remain with that client then she has to remain contracted to me for that client. She has gone back to that client and they (client) have said I don't have a leg to stand on and she can do what she likes. Client so far seems to be indicating that they also want to stay with me (I send more than one tutor to them and I oversee the programme in place for their child once a month), although I do believe there is more happening there that I am not aware of. Friend says I am being entirely unreasonable, there is no problem in continuing independently (i.e. I lose my fee) with this client. She says she will stop seeing all other clients. Apparently since I don't employ her I have no rights. And if I was a 'friend' then I would let it go.

Does any of this make sense? I am hoping not to spoon feed this and put as much detail as possible.

AIBU?

OP posts:

trixymalixy · 01/02/2014 10:43

YANBU and the contract she signed says so.

Unfortunately unless you're prepared to take legal action there's probably not much you can do to stop her.

Original poster

allisgood1 · 01/02/2014 10:44

If I am to stay with the client I will take legal action. I am not going to set an example of how to cheat me to the other tutors I have.

OP posts:

headoverheels · 01/02/2014 10:45

Legally you're in the right but realistically this sort of thing does happen all the time.

nennypops · 01/02/2014 10:45

I think you're completely in the right, but the trouble is that if you insist on this you've lost that client anyway.

Birdsgottafly · 01/02/2014 10:50

She is the Unreasonable one.

Your T&C's are standard and what you would expect and adhere to.

So she is asking that you set her up with new clients, improve her reputation, whilst risking yours, for a short term, then she can bypass you?

Remind her that your fee would be a lot higher for this "head hunting clients" service, than what you charge, which is for a long term service, so smaller fee.

She has a cheek and so does the client.

Original poster

allisgood1 · 01/02/2014 10:50

Nenny: exactly. Not a big loss given the reaction I have seen to this whole saga now anyway. I would rather not have the client. What bugs me the most is that "friend" doesn't see this. "friend" who is supposed to be godmother to my children. It just hurts (and its a hard lesson but Ive learned).

OP posts:

bedhaven · 01/02/2014 10:50

Working for nursing agencies they always had potential for this. The client had to pay a finders fee if they wanted to employ independently.

newmorning · 01/02/2014 11:01

You are in the right but there's nothing you can do without spending a mountain of money on legal fees and a lot of time writing statements and gathering evidence.

The only winners will be the lawyers.

Let it go.

FayeKorgasm · 01/02/2014 11:07

The restrictive clause you have in the contract is common, but it is not always enforceable, especially if it means that the employee can't earn a living in their field. If it has a time limit before the employee can work with the employers clients, it should not be for an unreasonable length of time, ie 12 months could be viewed as unreasonable.

That said, I do understand your position. It is unpleasant when a friend acts like this. Unfortunately she is putting her needs and wishes above yours.

Original poster

allisgood1 · 01/02/2014 11:11

I would let it go if the client terminated out agreement. Not if they don't. I have insurance for exactly this reason and intend to use it if I have to. What does it say to the other tutors of I don't? They would do exactly the same!

OP posts:

Scrounger · 01/02/2014 11:14

Agree with Faye on the restrictive clause, just because you have a clause in the contract does not make it enforceable. From a friendship point of view I think your friend is wrong though.

fascicle · 01/02/2014 13:01

Also agree with Faye on restrictive clause advice. Could you be pragmatic, and, given that she will breaching her contract, negotiate that she pay you a fee to keep the client?

HoratiaDrelincourt · 01/02/2014 13:20

I agree that restrictive covenants are rarely enforceable - I've never been subject to one but have been dragged into disputes.

She wants to work for client, you provide client ... morally she stays with you to work for client, or leaves a decent interval, and yy to twelve months as standard.

If she were not a friend what would you do?

Original poster

allisgood1 · 01/02/2014 14:56

If she were not a friend I would probably fight her tooth and nail and be a gigantic bitch that I should be. Instead I will likely give in and hand my notice into the client. They can have each other.

OP posts:

Original poster

allisgood1 · 01/02/2014 14:57

The restrictive covenant just states she cannot work with clients should they terminate their agreement or work with them should she terminate our agreement.

I'm being told again that because I don't "employ" her I can't say this.

OP posts:

Lonecatwithkitten · 01/02/2014 15:01

I received legal advice recently on restrictive clauses (also known as binding out clauses) for my contracts for my staff. To be enforceable they need to be fairly detailed for example if you ave worked for me for 12 months you are bound out fom approaching my clients with and X mile radius for 6 months rising to 2 years if you have been with me for four years or more. Without such detail they are worthless I am afraid.

TeacupDrama · 01/02/2014 15:14

you can have a binding out clause when self employed this is normal at say dental practices an associate will generally have a clause saying that when they leave they can not practice within a certain distance (1 mile in a town maybe 3 miles if very rural ) for 12-24 months, they can not inform patients where they are moving too; neither can they poach staff, it could never be for more than a year maybe 2 in exceptional circumstances and there would be an area roughly what would be seen as catchment in west end of london this could be as little as 500metres

to say she can't see a client of yours ever would be unreasonable to say she could not see a client independently for 12 months would if your clause if open-ended it is unenforceable is binding our clause are deemed unreasonable they are simply ignored by courts they do not replace with something reasonable

in short it is not because you do not employ her it is because the contract is not specific enough legally I do not think you have a chance of enforcing it but not for the reason she says

Original poster

allisgood1 · 01/02/2014 21:43

Thanks for this.

I am getting my contracts re-written by a qualified professional to prevent this from happening again. How I can ever trust someone after this I don't know, it has made me lose faith in business relationships as everyone is out for themselves regardless of what they say!

The most upsetting this is the loss of a friend who insists she is doing nothing wrong.

OP posts:

OHforDUCKScake · 01/02/2014 22:23

Makes perfect sense.

YANBU.

VikingLady · 01/02/2014 22:29

YANBU. And your contract with her is perfectly enforceable, and it is worth chasing up just to set an example to any other tutors who think it would be a good idea to copy her.

I'm sorry your friend is an arse, though. I lost most of my friends once I employed them.

fascicle · 02/02/2014 11:18

VikingLady really not sure the contract would be enforceable, given there were no timescales attached to the restrictions, or geographical limits, both of which have to be considered reasonable.

allisgood1 are you a member of the Federation of Small Businesses? Members have access to legal documents and templates, including contracts and restrictive covenant clauses (plus legal advice on the telephone).

RedHelenB · 02/02/2014 11:26

I think YABU as she is doing all the work for this client.

RedHelenB · 02/02/2014 11:29

it's one client so you say fair enough & stop subcontracting her.

PumpkinPositive · 02/02/2014 11:34

What does friend say about having signed a contract whose terms she intends to blatantly disregard? Why did she sign contract in the first place if she didn't accept the terms?

I freelance for a number of different companies. There is a gentleman's understanding that we will not poach clients but only rarely have any companies attempted to cement this understanding contractually. Where this has occurred, the contract has stated something along the lines of "promises not to work with client for a period of one year."

PumpkinPositive · 02/02/2014 11:37

I think YABU as she is doing all the work for this client.

OP is not being unreasonable. It is expected in business that you will not poach clients from companies you subcontract for and contracts often build that into the T&C, as OP appears to have done.

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