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

[allisgood1]

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?

If you are a tutor company I've always wondered what stops the tutors from just keeping the clients themselves- given that you do not employ them and they are self-employed.

I don't know the answer, and morally I wouldn't be looking to cheat (I have briefly worked for such a company) but I think you are on dodgy legal grounds- you would have to see advice from an employment specialist in this area because it is not the same as having an employee who leaves and then keeps the client (and such restrictive contracts are more common and sometimes people do sue over them)

What does your contract with your customers say? Usually if you are using freelancers via intermediaries there will be a clause stating any restrictions on taking the freelancer and cutting out the middleman, eg, paying a finders fee within a set period of time.

From what you have said regarding your contract with the freelancer I would say it is unenforceable as it is unreasonable to state that they can never work with one of your clients after terminating a contract. There needs to be a time limit - I think the standard is usually about three months and/or some sort of penalty clause/finders fee if it is within this period.

I don't think you are unreasonable to be cross with your friend but I think the terms of your contract with her, as stated, are unreasonable.

It's really not at all uncommon to have non-compete clauses in commercial contracts, you can agree any terms you like in contracts (provided they are legal) and if you both sign it then you are agreeing to it.

If she's now claiming to be an employee then tell her she owes the revenue for all the national insurance you haven;t deducted (assuming she's above the limit which may not be the case).

The reality of breach of contracts are that its rarely worth suing becuase the cost of the legal action would come to way more than you'd get in damages.

I would get a proper lawyer to draft a letter to her pointing out the breach of contract and asking her to pay you a fee equal (say) to 1 years commission to buy out her contract. Also letter to client saying that you are trying to negotiate a settlement with her to allow her to continue working with them and also for you to continue working with them but that it would be commercial suicide for you to set a precedent of allowing contracted tutors to walk off with existing clients and you are sure that they aren;t really intending for you to set such a precedent. You will continue to keep them informed and of course if her tutoring not under the umbrella of you company is of paramount importance then of course you would understand them wanting to give notice under your existing contract with them.

This is a business, don't let the fact that you are personally offended (however understandable) influence your actions.

Also just to add, if you are reviewing your contacts you need to look at any propriety elements, things like lesson plans and teaching methods, not an area I am familiar with but something you may wish to consider.

From a business point of view I would say if you have been operating for five years you are lucky not to have had this issue before. I would look at this as an opportunity to deal with this issue before it arises with a more lucrative client or a freelancer who wants to start up on their own taking more than one client from you.

Where did you get contract from?

so as the person getting the tutoring I would stop my contract with you & then advertise for the tuition I wanted ( ie. your friend)

RedHelen - that doesn;t actually allow the friend to apply for the position if they have a non-compete - same isue. They are in breach of contract if they take a client of their previous tutoring firm (of course not having seen contractual terms you can't really be that definitive).

People get away with that because its not worth suing not becaue its OK to do that.

I freelance for various agencies and work for their clients. I am not allowed to ask their clients to be my direct clients, nor they me obvs., and would expect major trouble if I did.

Without this clause every client would treat agencies as an introduction service and then pay the individual directly and save themselves a packet.

Your friend is trying it on. Although I agree there's no point pursuing it through the courts, I would send her a legal letter setting out her breach of contract in case the cheeky minx tries it with any other clients.

RedHelen, you really don't understand how the business works.

in this case the contract will be unenforceable as no time limit on taking a client I think in tutoring a year would be the max enforceable, I do not think distance would be that relevant in this case

these terms are perfectly valid if worded correctly in employee / self-employed and sub-contractors contracts unfortunately as OP's contract had no time limit it would be deemed unreasonable by the court

just because 2 people sign it does not mean it is fair or enforceable; for a contract to be enforceable it has to be reasonable the implication of OP's original contract was that the "friend" was banned from working with a previous client forever even if OP closed the business

I suggest OP re-writes contracts with a 6-12 month binding out clause

your friend has behaved badly I do not think friendship will survive so I would get an official letter written about breach of contract and you need to think whether you really want to keep dealing with a client who is trying to go behind your back

fascicle Ah, I hadn't realised there was no time limit in the contract. Usually freelance contracts say you cannot work directly with a client within 6 or 12 months, or with anyone at all in the same line of work within a certain geographic area (often 15 miles where I worked), but the latter is not always enforceable as it can be deemed as restricting the freelancers right to make a living. not approaching clients IS enforceable though.

(I had a tricky time after being made redundant from a sales office, so looked into this).

She is being short-sighted as tutoring for specific children tends to have a time limit and she'll get no more introductions from you.

I would certainly write legal letter stating that she has breached her contract but agree with others it is unlikely to be worth taking legal action.

I know that isn't helpful but it is a small world and people go by reputation when choosing tutors. It won't help if hers is tainted.

The friendship would be over for me in this situation